[rti_india] Re: Fee for First and Second Appeals

Dear Group,

I think it is very unfortunate that the discussion going on here is not conducive to conducting a "debate". Instead all participants are trying to score points off each other and evading the central issues.

The brief facts are

1) That Venkatesh advised Rajesh Darak on Hum Janenge that the decision of some states to impose a fee for 2nd appeals had no basis in law. He claimed that section 28 in particular does not provide for this.

2) After a few days Ashish cited this post as an example of why NCPRI members should be booted off this group (RTI_India) for deceiving the citizens etc. As per Ashish section 27 clearly allows fees /costs to be charged for 2nd appeals. Ashish distinguished section 27 from section 28 highlighting that section 27(2)(e) allows the govt to frame rules for "appeal procedures" which includes the "(court) fees" to be affixed to the prescribed index (and service of process on parties also being prescribed to be incumbent upon the CIC/SIC).

3) Whereupon Venkatesh ridiculed ("laughable") Ashish's logic but did completely evaded addressing Ashish's argument at all. Unfortuantely the argument had got confused with certain allegations that Venkatesh was "anti-national". At this point Karira (Jam) intervened and segregated out the "fees for 1st/2nd appeals" arguments.

4) Ashish now provides a detailed (but not "long') analysis of why the CICX (being a "court" for purposes of evidence only ..) the "Court Fee Act of 1870" can be additionally relied upon to justify the collection of fees at the 1st/2nd appellate stage by virtue of 19(5) of RTI Act.
Importantly he provides the complete citation for the Law Commission's report on Fees / Costs.

5) Regrettably, and I say this only to focus the future debate here, Venkatesh ignores almost completely the substance of Ashish's points and meanders into a "long" analysis of his own as to why fees cannot be charged (which IMHO is long on rhetoric and short on substance).

I therefore request Venkatesh and Karira to specifically address /counter Ashish's arguments as to why, as per him, fees can be charged. This is the best way for the debate to conclude, especially as having previously thrashed this out with Ashish, I know he has lots of 'khuraak' held back in reserve :-).

It would be helpful, to use provide a para-wise reply, clearly indicating whether you agree or not with the Ashish's careful drafting, and if not BRIEFLY why not.

Sarbajit

--- In rti_india@yahoogroups.com, C K Jam <rtiwanted@...> wrote:
>
> Mr Ashish,
>
> 1. The Karnataka High Court has already ruled in 2007 that the SIC has judicial powers but the SIC cannot be equated to a civil court. The question being decided by the Court was whether SIC can be made a party to a writ before the HC. SIC/CIC seem to be "quasi-judicial" bodies akin to tribunals. The powers of a Civil Court are vested in the SIC/CIC for the specific purpose of conducting inquiry under Sec 18 and limited to 18(3)(a) to (f).
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> 2. High Court prescribing Rules: No doubt, the Rule making power is vested with the "competent authority" under Sec 27. "Competent Authority" is defined in Sec 2(e) and Sec 2(e)(iii) states:
> iii)the Chief Justice
> of the High Court in the case of a High Court;
> Therefore the rule making power of the CJ of High Court is restricted only to the High Court and not to subordinate Courts.
> In other judicial or administrative matters, the CJ might have powers to do such things as may be prescribed, in relation to subordinate courts. But as far as the RTI Act is concerned, he does not have any powers to frame Rules for subordinate courts.
> Similarly, I doubt whether the CJ of a High Court has powers to designate PIO's of subordinate courts - which nearly all CJ's of High Courts have already done (and also incorrectly designated them as CPIO's !)
>
> The Court Fee Act or any other Act might give powers to High Courts to frame Rules, but the rule making power vis-a-vis the RTI Act has to flow from the RTI Act itself and restricted to only those powers that are conferred specifically by this very Act.
>
> 3. Sec 19(5): Till this day not even a single
> commissioner in the CIC or the APSIC, has ever agreed (or invoked) Sec 19(5) in spite of specific written prayers and oral submissions. For them, taking evidence is only restricted to a Complaint made under Sec 18. And you very well know that most IC's in the CIC and nearly all IC's in SIC's, hate complainants who approach them directly under Sec 18, without first exhausting Sec 19(1), even if any clause from 18(1)(a) to (f) is directly applicable. It is only in 2009, that APSIC started admitting Complaints...till then they were just "returned".
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> But getting back to the main issue:
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> 4. I am not disputing the right of any government to charge for any "services" that they are providing. What I am trying to discuss is whether the appropriate government or the competent authority has powers to prescribe fees for first and second appeals and if such fees can be justifiably prescribed under the RTI act.
>
> 5. Once again, I repeat, that if the
> legislative intent was that fees had to be charged for first and second appeals, then Sec 19(1) and 19(3) would have specifically mentioned "...accompanied by prescribed fees", just like sec 6(1), 7(1), 7(3) and 7(5) do so. Then the prescribing of such fees would be perfectly valid since the word "prescribed" is defined in Sec 2(g):
> g)"prescribed" means
> prescribed by rules made under this Act by the appropriate Government or
> the competent authority, as the case may be;
>
>
> From: rti_india@yahoogroups.com [mailto:rti_india@yahoogroups.com] On Behalf
>
> Of ashish kr1965
>
> Sent: Friday, June 18, 2010 8:56 AM
>
> To: rti_india@yahoogroups.com
>
> Subject: [rti_india] Re: Fee for First and Second Appeals
>
>
>
> Similarly, at the Central level, the DoPT has notified a) "Fee and Cost
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> Rules", b)"CIC Appeal Procedure Rules", neither of which set a fee/cost for
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> filing second appeals. The mere fact that a fee for filing second appeal has
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> not been prescribed does not mean that such fee cannot be prescribed.
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> The business of the Information Commissions consist of a) receiving and
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> enquiring into complaints from any person b) deciding appeals. It is
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> indisputable that the Information Commissions enjoy the legal power to take
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> evidence, directly by the RTI Act for complaint process and indirectly via
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> rules for appeal process. As such the proceedings of the Commissions may be
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> considered as "judicial proceedings" of a "Court" under section 3 of the
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> Evidence Act.
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> For instance the Court Fee Act of 1870 additionally allows the High Court to
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> prescribe court fees for itself and all subordinate courts, such as for
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> service of process etc. Hence there is no requirement for the RTI Act to
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> additionally confer such rule making power for the Courts.
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> The DoPT for instance has conferred the power to take evidence upon the CIC
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> despite the fact that the RTI Act does not explicitly say so.
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> However, by 19(5) the CPIO is required to :"prove" the information denial in
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> "all appeal proceedings". This therefore triggers the requirement in law for
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> all appellates to take evidence, hence their proceedings are deemed to be
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> that of a "court".
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> It is by now very well settled that if a law requires the Government to do
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> something (such as running hospitals) then the Government is fully empowered
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> to recover costs (fully or partially) from the users either directly (as
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> costs) or indirectly (as fees). The fees / costs must be "reasonable"
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> Ashish
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