Friday, June 18, 2010

[rti_india] Re: Fee for First and Second Appeals


Dear Ashish,

Your TRAI example is really a killer. If we read the DoPT's Appeal Procedure Rules, these are only prescribed in terms of the 27(2)(e) and (f) powers.

Assuming for a moment that only Rule 5 (ie. procedure for deciding appeals - the evidentiary part) is under 27(2)(e) then it means that DoPT has used 28(2)(f)'s "may be prescribed" to drag in "contents of
appeal" and "verification", and the Orissa Govt has used it for
appeal fees too under the 19(5)+"court fee" strategy used in your book and cleverly obfuscated it by generally referring to section 27.


--- In, ashish kr1965 <ashishkr1965@...> wrote:
> Dear Sarabjit
> Many thanks for your intervention. The reason why these NGO types MUST be
> expelled from the group is that they believe they can out shout everybody and
> play to the gallery by using arguments that appeal to emotion and not to reason.
> I agree that we should also insist on a parawise / point wise reply during such
> debates so as to ensure that "NGO-speak" (NGO-shout ?) does not work here.
> Leaving all my previous arguments aside for the moment, I would ask M/s Naik
> and/or Jam to respond to one point.
> A) In the Telecom Regulatory Act section 14A(3) describes the rule making power
> of the Central Government for appeals to the Telecom Appellate Tribunal.
> "(3) Every appeal under sub-section (2) shall be preferred within a
> period of thirty
> days from the date on which a copy of the direction or order or decision made by
> the Authority is received by the Central Government or the State Government or
> the local authority or the aggrieved person and it shall be in such
> form, verified in
> such manner and be accompanied by such fee as may be prescribed:"
> In the case of DoPT / Orissa Govt who have prescribed by Rules the
> form of appeal,
> the verification of the appeal, and fees for appeal (without any
> equivalent /explicit
> enabling clause in RTI Act) why do you activists only focus on the fee
> aspect and not
> also challenge their requirements of form for appeal, the verification
> of appeal etc ?
> In passing, it is good to see that the Orissa Soochna Commission has prescribed
> fees for both the 1st as well as 2nd appeals and directed that it be
> in the form of
> court fee stamps; exactly as I had recommended in the 1st, 2nd and 3rd edns. of
> my tiny (and best selling) RTI textbook :-)
> Ashish
> >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

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