Jump to content

Raveena O Blog

  • entries
    22
  • comments
    28
  • views
    1,335

HOW TO DIFFERENTIATE A COMPLAINT UNDER SECTION-18(1) and SECOND APPEAL UNDER SECTION-19(3)?


RAVEENA_O

5,440 views

DOWNLOAD CONTENTS OF THIS PAGE AS : [ATTACH]9957[/ATTACH]

 

HOW TO DIFFERENTIATE A COMPLAINT UNDER SECTION-18 and SECOND APPEAL UNDER SECTION-19(3)?

 

Often queries are raised before this forum about Complaint under Sec-18 and Second Appeal under Sec-19(3). There are two distinct legislative intent behind both these sections.

 

Section-18 is a provision bestowing an Original Jurisdiction on CIC or SIC to receive complaints and to ensure proper enforcement and implementation of the provisions of the Act. It is supervisory in nature, WHEREAS the provision under Section-19 is an Appellate jurisdiction arising only out of an Appeal preferred before First Appellate Authority, which is decided or not decided within prescribed time limit. In both Section-18 & 19, CIC or SIC has powers to impose penalty or recommend disciplinary action against CPIO/SPIO. Conspicuously absent in these sections is a provision to impose penalty on FAA or higher officers of the Public Authority for non-compliance of the provisions of the Act. In appeal under Sec.19(3), it is mandatory for CIC or SIC to give a notice of its decision, whereas such a decision notice is expressly not mandatory in a Complaint under Section-18, though CIC/SIC may act on the complaint.

 

Sec-18 can be invoked in cases where –

  1. CPIO/SPIO is NOT appointed by the Public Authority,
  2. CPIO/SPIO has refused to accept Application under Sec-6 for information,
  3. CPIO/SPIO has refused to accept Application underSec-19(1), (2) & (3) for forwarding it to CPIO/SPIO, First Appellate Authority, CIC/SIC,
  4. Refused access to any information requested under this Act,
  5. Not responded to the request for information or access to Information within the time limit http://www.rtiindia.org/forum/blogs/raveena_o/1990-rti-time scheule.html
  6. Amount of fee charged is considered unreasonable,
  7. Incomplete, misleading or false information has been supplied.
  8. There is no specified time limit for making COMPLAINT under Section-18 whereas Appeal under Section-19(3) to CIC/SIC has a time limit of 90 days from date of decision of First Appellate Authority or 120 days from the date of submission of first appeal to First Appellate Authority, where no decision of FAA is received.

Under Section-18, CIC or SIC has power to initiate inquiry, if it is satisfied, that there is reasonable grounds to inquire into above mentioned matters. CIC or SIC enjoys the same powers of Civil Court while trying a suit under Code of Civil Procedure 1908 in respect of –

 

  1. Summoning and enforcing attendance of witnesses, compel them to give oral or written evidence on oath, produce documents or things.
  2. discovery and inspection of documents
  3. receiving evidence on affidavit
  4. requisitioning any public record or copies thereof from any court or office
  5. issuing summons for examination of witness or documents or any other matter prescribed.

CIC or SIC, during inquiry of any complaint under Section-18 may examine any record to which RTI Act applies and which is under the control of Public Authority. No such record may be withheld from it on any grounds.

 

Section-18 does not expressly caste an obligation on CIC or SIC to give a notice of its decision to Complainant or bestow any powers to CIC or SIC to order dissemination of information to the Complainant.

 

Provision under Section-18 is solely supervisory in nature for implementation of the Act. However, on inquiry, CIC or SIC can impose penalties u/s 20(1) and/or recommend Departmental Action u/s 20(2) after giving reasonable opportunity of hearing.

 

WHEREAS

 

Section-19(3) can be invoked when –

  1. Where an appeal under Section-19(1) has been preferred before First Appellate Authority, which is decided or not responded within prescribed time limit.
  2. Appeal under Section-19(3) to CIC/SIC has a time limit of 90 days from date of decision of First Appellate Authority or 120 days from the date of submission of first appeal to First Appellate Authority (where no decision of FAA is received) - http://www.rtiindia.org/forum/blogs/raveena_o/1990-rti-time-scheule.html

 

Sec-19 empowers CIC or SIC to decide the issue involved in the Appeal preferred by an Appellant and give its binding decision; and make the public authority to enforce compliance of the provisions of Act viz ::

 

  1. to give access to information (if required in a particular form),
  2. appoint CPIO or SPIO
  3. to publish certain category of information
  4. make changes in its practice of management and destruction of records
  5. enhance provision of training on RTI to its officials
  6. order compensation to the complainant for loss or detriment suffered;
  7. impose any penalty u/s 20 on PIO, FAA & Assisting Official.
  8. Reject the application (appeal)
  9. Give decision notice to Appellant/complainant and Public Authority.
  10. An appeal under this section shall be required to be decided in accordance with the procedure laid down by appropriate Government in terms of Sec.27(2)(e).

CONCLUSION:

 

In view of the above provisions and SC Judgment dt: 12/12/2011 & Delhi HC judgment dt: 23/10/13, (copies attached below) –

 

  • CIC/SIC cannot order supply of information while disposing of complaint under Section-18.
  • CIC/SIC has to decide the Complaint under Sec-18 on merit.
  • In order to get information by invoking jurisdiction of CIC/SIC, the appellant has to file Second Appeal under Section-19(3) of the Act before CIC/SIC.
  • In Appeal under Sec-19(3), Applicant should make specific prayer(s) before CIC/SIC for imposition of penalty [s.20(1)] and/or to recommend for disciplinary action against PIO [s.20(2)] in terms of section-19(8)© and/or for granting compensation under Sec-19(8)(b) of the Act amongst other prayers.
  • The Applicant can file Complaint under section-18 as well as Appeal under section-19(3) separately in respect of same RTI Application, if there are grounds for both – and the CIC/SIC should decide both on merits.

JUDICIAL DECISIONS:


  1. [*=1]The Hon'ble Allahabad High Court interpreted the provisions of Sec-18 and held that CIC or SIC has power to order supply of information under this section, which is the object and legislative intent of the Act. (See Post#1 of this link:
http://www.rtiindia.org/forum/7344-allahabad-high-court-order-clarifying-sec-18-a.html )
[*=1]However, Supreme Court by its decision dt 12/12/2011, held that the CIC/SIC cannot order supply of information while considering Complaint under section-18. (See decision attached below).
[*=1]Delhi High Court vide decision dt: 28/10/13, distinguished Sec-18 and 19(3) and held that - it is expected that the Commission (CIC) henceforth will decide the complaints on merits instead of directing the CPIO to provide the information which the complainant had sought (see copy of judgment attached below)

...................................................................................................................

Judgment Copies:

 

SUPREME COURT ON SEC-18 & 19
(12/12/2011)

 

DELHI HIGH COURT ON SEC-18 & 19 (23/10/2013)

[ATTACH]9952[/ATTACH]

 

***

 

1 Comment


Recommended Comments

There are no comments to display.

Guest
Add a comment...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

×
×
  • Create New...

Important Information

By using this site, you agree to our Terms of Use & Privacy Policy