I repeat that this may kindly be considered only as an accademic
discussion clarifying a very vital factor to prevent hijacking of the
RTI Act by some of the corrupt and influencial officials with the
connivance of the Commissions.
1. There is absolutely no provision anywhere in the Act that
stipulate that a First Appeal under 19(1) bar a complaint u/s 18(1)(c)
2. In fact one is not expected to approach SIC/CIC as and when with
the deemed refusal of the PIO lest the Commission is over-burdened.
It is normal protocal to approach the Commission only when an
aggrieved exhaust all other opportunitiesstipulated in the Act.
Naturally when the PIO refuces, one should approach his AA by the
only means of approach viz., first appeal. In majority of the cases
the AA will direct the PIO to furnish the reply - it maynot be the
information sought; but one will get a reply as the PIO will not have
any reason for not replying.I donot find anything wrong in making one
more first appeal based on the reply if required. In case this
second "first appeal" is rejected, it is good enough reason.
3. Section 19(1) is very specific. Any person not receiving a
decision ....may file an appeal. IT DOES NOT SAY SAY that on deemed
refusal one should not file first appeal but should resort to
complaint only.
4. Sec 19(3) is too specific. A SECOND APPEAL SHALL LIE ONLY AGAINST
THE DECISION UNDER 19(1). This means that there could be no Second
Appeal unless there is a DECISION of first appeal. If there is NO
DECISION or NO REPLY, there cannot be a Second appeal. The Act does
not allow it.Of course anything can happen in "KHANSI RAM KA
PALTAN ".Thjat is a diferant matter altogether
5. Kindly forget the number of days or delay aspects. That is not
the issue
6. Can anyone quote the relevant Section of the Act which says that A
SECOND APEAL SDHALL LIE without a First Appeal ?
7. Can any one quote the Section which bar a complaint when first
ppeal is made or rather where does it state that a first appeal
disqualify the appellant from making a complaint.
8. Kindly leave aside the somersoult of First appeal, Second appeal
and complaint. Let us examine the ground realities. A cityzen make an
application seeking an information falling under the defenition of
information given in Section 2(f). The information is held by the PA
and not falling under any of the exedmptions or disportionately
divert the resosurces nor spoil the record. Can anyone, PIO or AA or
the SIC, deny it and dismiss the case just because the information if
given will expose serious corruption which the PIO, AA and SIC does
not want to disclose. By converting the Complaint suo motu into a
Second appeal the sIC has barred the appellant's chance to prefer the
second appeal with relevant provisions which does not suit the PIO,AA
and SIC. With such a disposal how can one approach judiciary ? These
are all deliberate hy-jacking theRTI Act. I feel that forums likeRTI-
india should stand for that. Can anyone justify the above
actofSIC,Kerala ? It is an open challenge
[EMAIL PROTECTED], "sroy1947" <[EMAIL PROTECTED]> wrote:
>
> Dear Col Kurup
>
> I agree that this should be resolved for academic interest. As
> requested, I am setting out all the sections I am relying on.
>
> 1) Once a request is submitted u/s 6 and PIO does not reply at all
> (ie. "fails to give decision") in time, he is deemed to
have "refused"
> the request- qv.sub-section 7(2)
>
> 2) At this point it is open to Applicant to either file complainant
> u/s 18(3) for "refusal" (PREFERRED option) or go in for First Appeal
> u/s 19(1) which is also allowed ("does not receive a decision in the
> time ..."). Since the word "may" is used in 19(1) it is NOT
> "obligatory" to file First Appeal for deemed refusal as you have
stated.
>
> 3) Once the Applicant files First Appeal to the Appellate u/s 19(1),
> the alternate remedy of 18(3) gets barred to him. (NB: You may not
> agree with this but it is true)
>
> 4) Section 19(3) also specifically provides that where the First
> Appellate does not give decision within the time it *SHOULD HAVE
BEEN
> MADE*, then a 2nd Appeal lies to CIC/SIC. This is specifically
> provided for by
>
> "19(3) A second appeal against the decision under sub-section (1)
> shall lie within ninety days from the date on which the decision
> should have been made or was actually received, with the Central
> Information Commission or the State Information Commission:".
>
> Now by 19(6) it is defined that the time for decision in First
Appeal
> is 30 days (or 45 days in special circumstances).
>
> 5) So in the circumstances, IMHO the S'CIC was justified in treating
> your Complaint as 2nd Appeal for your benefit.
>
> 6) Since this issue is quite important, I wish that other members
may
> also comment.
>
> Sarbajit
>
> --- In [email protected], "colnrkurup" <colnrkurup@> wrote:
> >
> > Dear Mr.Sarabajit,
> > This time I find it diffcult to agree with you for a change.
May
> > I request you to have a look at Section 19(3) again ? "A second
> > appeal against the decision under sub-section (1) shall lie
> > within....." That means a second appeal can be made only against
the
> > decision on first appeal. When there is no decision at all, how
can
> > one make a second appeal ? Second appeal against what ? Section
18
> > (c) is very specific ... " who has not been given a response to a
> > request for information within the time imits ..." Here both the
PIO
> > and AA have not given a respnse. The Act does not say that a
> > complaint to SIC is not maintainable when a First appeal is
made.
> > Again I would like to draw your attention to Section 19(1) which
says
> > that "Any person who does not receive a decision within the time
> > specificed in sub-section (1).....may within thirtry days from
the
> > expiry of such period ......"
> > Hence when I did not receive any response from PIO it is
obligatory
> > on my part to make a first qappeal under 19(1). When no decision
> > under 19(1) also is not received I have absolutely no choice
other
> > than making a complaint. In case I make a second appeal on
receipt
> > of reply I am forgoing my chance to make second appeal when I
receive
> > the reply based on SIC's direction and the reply malafidely deny
the
> > information. I have absolutely no doubt on it. The Act also
isvery
> > clear in this respect without any ambiguity.I can convince you
unless
> > you can quotethe section of theAct in support of your view.
> > Now, What is the use of my attending the hearing without
knowing
> > what to defend ? SIC is not a court. I need not PROVE my
case.
> > Whatever I have submitted in my complaint is adequate.This is
more so
> > when I have intimatted that I have nothing more than what is
given in
> > my complaint to add requestting the SIC to decide the case asper
my
> > pleading.Why should theSIC callme for hearing without intimating
the
> > purpose ? What stop him from communicatting the reply furnished
by
> > the PIO. This caseof mine is solid where theSIC has committed
all
> > possible irregularities. Ultimately how can theSIC dismiss my
case
> > suo motu converting my complaint into a second appeal when I had
not
> > made a second appeal. Shall we argue this out on accademic
> > interest ?
> >
>
