Thursday, June 17, 2010

[rti_india] Re: Fee for First and Second Appeals

Similarly, at the Central level, the DoPT has notified a) "Fee and
Cost Rules", b)"CIC Appeal Procedure Rules", neither of which set a
fee/cost for filing second appeals. The mere fact that a fee for
filing second appeal has not been prescribed does not mean that such
fee cannot be prescribed.

The business of the Information Commissions consist of a) receiving
and enquiring into complaints from any person b) deciding appeals. It
is indisputable that the Information Commissions enjoy the legal power
to take evidence, directly by the RTI Act for complaint process and
indirectly via rules for appeal process. As such the proceedings of
the Commissions may be considered as "judicial proceedings" of a
"Court" under section 3 of the Evidence Act.

For instance the Court Fee Act of 1870 additionally allows the High
Court to prescribe court fees for itself and all subordinate courts,
such as for service of process etc. Hence there is no requirement for
the RTI Act to additionally confer such rule making power for the

The DoPT for instance has conferred the power to take evidence upon
the CIC despite the fact that the RTI Act does not explicitly say so.
However, by 19(5) the CPIO is required to :"prove" the information
denial in "all appeal proceedings". This therefore triggers the
requirement in law for all appellates to take evidence, hence their
proceedings are deemed to be that of a "court".

It is by now very well settled that if a law requires the Government
to do something (such as running hospitals) then the Government is
fully empowered to recover costs (fully or partially) from the users
either directly (as costs) or indirectly (as fees). The fees / costs
must be "reasonable"

In passing I may mention for Mr Naik's benefit that in 2004 the Law
Commission of India had considered an issue referred by the Law
Ministry namely

"to the 'upward revision of court fees structure vis-à-vis the need to
build financial disincentives to discourage vexatious litigation',
vide O.M. No.A-60011/14/2003/Admn.III LA, dated Feb. 11, 2003. The
Department of Legal Affairs was requested by the Department of Justice
vide its letter No.L-11018/1/2002-Jus. dated 29.8.2002 for referring
this matter of revision of court fees structure, to the Law

The Law Commission's report is in the public domain.


--- In, C K Jam <rtiwanted@...> wrote:
> NOTE: Just keeping the relevant part of the previous post by Ashish and also changing the subject of the thread.
> 1. In some States, like AP, the Government has notified separate "Appeal procedure Rules" to be followed by the SIC, which are distinct from the RTI Fees and Rules for prescribing fees for Sec 6(1), 7(1) , etc. In such States, neither the Appeal Procedure Rules nor the RTI Fees and Rules prescribe fees for any appeals.
> 2. Sec 27(2)(e) allows the appropriate Government for prescribing the procedure to be adopted by the CIC/SIC in deciding (second) appeals. Can "procedure for deciding appeals" include payment of a fee ? If the words used were "procedure for filing and deciding a appeal" then certainly the appropriate government could prescribe a fee as a pre requisite for filing a second appeal. But that is not the wording in this case.
> 3. The starting sentence in Sec 27 contains the phrase to "...make rules to carry out the provisions of this Act". Is there any provision in the Act which prescribes a fee for first or second appeals? Sec 19(1) and 19(3) (which deal with first and second appeals) do not say anything about the appeals being accompanied by a "prescribed fee".
> On the other hand, Sec 6(1), 7(1), 7(3) and 7(5) clearly talk about "prescribed fee/s" and those have been correctly prescribed by the appropriate government/competent authority vide powers vested in them under Sec 27 and 28.
> If the legislative intent was for a fee to be paid for first and second appeals, the Act would have clearly mentioned "appeals to be accompanied by fees as prescribed.etc.'.
> Even if there was a mistake or a unintentional error on this account, the Central Government had 2 years to remove difficulties vide powers under Sec 30. Why didn't it do so ?
> 4. In Maharashtra (and in some other States as well as some High Courts) the rules also prescribe a fee for filing a first appeal under Sec 19(1). No where in Sec 27 or Sec 28 is any such rule making power vested in the appropriate government or the competent authority. How come such a fee has been prescribed even for First Appeals ?
> Remember that the first appeal has to be filed with a "officer senior in rank" in the same PA. What is the logic in prescribing a fee for such a first appeal to a officer usually sitting in the same office as the PIO ?
> RTIwanted
> --- On Thu, 6/17/10, ashish kr1965 <ashishkr1965@...> wrote:
> From: ashish kr1965 <ashishkr1965@...>
> Subject: [rti_india] Re: Proposal to blacklist NCPRI members from RTI_India
> - Section 28 does not contain a clause analogous to 27(2)(e)
> for the procedure to be adopted by the Central Information Commission or
> State Information Commission, as the case may be, in deciding the appeals
> under sub-section (10) of section 19;"
> It is this clause which enables fees to be charged for appeals to the CIC/SIC,


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