Saturday, June 19, 2010

[rti_india] Re: Fee for First and Second Appeals


1) The RTI Act (or any other law) does not have to say that Court fee Act is applicable. Section 22 makes its clear that the RTI Act does not over-ride / repeal any other law in force except to the extent of any "inconsistency".

2) The CF Act is available on links below (and also on your forums's website). Please note that the fees are FIXED fees. The MINIMUM fee seems to be 1 Rupee for appeals to be affixed by way of court fee stamp.

Section 6:
"6. Fees on documents filed, etc., in Mufassal Courts or in public offices. Except in the Courts hereinbefore mentioned, no document of any of the kinds specified as chargeable in the first or second schedule to this Act annexed shall be filed, exhibited or recorded in
any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document."

Schedule 2 (clause 11)
"11. Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree, and is presented .. (a) To any Civil or Criminal Court other than a High Court, or to any Revenue Court, or to any Collector or Magistrate, or other executive officer except such as are mentioned in clauses (b) and (c) of this number;"

In addition there shall be process fees for service of documents settled by the High Court with territorial jurisdiction. It is now clear that the CIC/SIC are amenable to article 227 of the concerned high courts as "tribunals" if not as courts since the Delhi High Court (Justice Bhat) has already held the CIC to be a "tribunal". The DoPT Rules provide for service by process server.

Section 20
"20. Rules as to cost of processes. The High Court shall, as soon as may be, make rules as to the following matters:-- (i) The fees chargeable for serving and executing processes issued by such Court in its appellate jurisdiction, and by the other Civil and Revenue
Courts established within the local limits of such jurisdiction; (ii) the fees chargeable for serving and executing processes issued by the Criminal Courts established within such limits in the case of offences other than offences for which police-officers may arrest without a warrant; and (iii) the remuneration of the peons and all other persons employed by leave of a Court in the service or execution of processes. The High Court may from time to time alter and add to the rules so made. Confirmation and publication of rules. All such rules, alterations and additions shall, after being confirmed by the State Government be published in the Official Gazette, and shall thereupon have the force of law. Until such rules shall be so made and published, the fees now leviable for serving and executing processes shall continue to be levied, and shall be deemed to be fees leviable
under this Act.

Your point # 1B
From now on any penalty order passed by CIC where court fee was not affixed before FAA or CIC may be challenged as invalid. The Registrar of the CIC is criminally liable for not rejecting these appeals (under IPC). It is a very serious charge. But section 28 of the CF Act may on order allow all the documents which were not stamped to be revived. Section 28 reiterates that every appeal which is unstamped is meaningless / of no legal value.

Your point #2
The RTI ACT does not have to provide for it by virtue of section 22.

Your point #3
Every Act /Rule is notified and published by Govt. The public at large is presumed to be aware of the provisions. Ignorance of fact is an excuse, ignorance of law is not an excuse (see Indian Penal Code).

Your point #4
Obviously the combined legal brains of DopT and several State Govts and HCs disagree with you on 27(2)(f) /28(2)(iv) and agree with Ashish's book.

The debate cannot be closed as legally (not emotionally) no argument has been advanced (we are waiting for our expert members like Venkatesh / Shekhar Singh) against Court Fee Act's provisions for fees to be affixed for appeals being legally valid (as prescribed by so many august / eminent bodies).


--- In, "C K" <rtiwanted@...> wrote:
> 1. The RTI Act 2005 also does not say that the Court Fee Act is applicable . Please read the schedule of fees as given in the Court Fee Act 1870 and point out under which specific section is a FAA/SIC/CIC covered and how much are the fees ?
> In any case the main issue in the debate is "whether the appropriate government or the competent authority have the powers under the RTI Act to prescribe fees for first and second appeals" - as they have done in several States and High Courts.
> Let the FAA or SIC/CIC return first or second appeals citing non payment of fees (when no such fee has been prescribed). How many have done so ? How many times have you yourself paid a fee under the Court Fee Act 1870 to the CIC ? As a obedient and law abiding citizen, you should have yourself paid the fees even if they were not prescribed, because as you yourself say, such a fee has to accompany any Commissioners and other Public Servants and you were aware of this all along.
> 2. That citation of the clause in the TRAI Act in fact confirms what I have said all along - that the statute has to specifically provide for a payment of fee for appeals...
> 3. Sec 27 and Sec 28 give the powers to "make rules to carry out the provisions of this Act". Obviously, 27(2)(a)(b)(c)(d)and 28(2)(i)(ii)(iii) cannot be said to include power to frame rules for fees for first and second appeals. All these sub sections deal specifically with the concept of payment of fees. If fees were indeed to be paid or if there was any intent to give power to prescribe fees, the framers and the legislators could have easily included a similar clause, just after these, for this purpose. Why didn't they do so ? Did they think that we citizens are so smart that each one of us will read the Court Fee Act of 2005 and pay the fees for first and second appeal, knowingly and obediently ?
> I am a ignorant idiot and a fool but those with 35 years experience and retired from senior Government posts and now Commissioners or the plethora of Secretary (Legal) in each SIC should not be ignorant. If you and Mr Ashish are capable of pointing and arguing this out....what were they doing for 5 years ? Sleeping ?
> 4. That leaves Sec 27(2)(e) and (f) AND 28(2)(iv). "payment of fees" or "accompanied by such a fee" are definitely not part of the "procedure" to decide second appeals. The "procedure" for deciding appeals (Sec 27(2)(e)) starts once a second appeal has been filed and accepted. Please also note that this covers only "second appeals" this clause cannot be used to prescribe fees for first appeals.
> (There are several other so called "procedures" prescribed in many RTI Rules, and as Mr Ashish correctly pointed out earlier, even they do not form part of the procedure to decide second appeals)
> As far as Sec 27(2)(f) and 28(2)(iv) are concerned, surely, you will agree that using these clauses is a back door way of vesting oneself with the power to prescribe fees for first and second appeals. At most, they can be used as a post facto excuses to cover up ones mistakes in framing rules.
> 5. Will not comment/reply on Item 4 and 5 of your post (because point wise replies are obligatory) since they do not directly relate to RTI.
> In summary, personally I do not care whether there are fees or not for first and second appeals or the quantum of such fees. My objective is to apply for "information" and get it even if I have to appeal to the FAA or CIC/SIC - with or without fees ! All I seek is "information" to seek transparency, bring in accountability and reduce corruption. The mute question I was trying to debate was whether the the RTI Act prescribes such fees and whether under Sec 27 or 28 such fees can be prescribed.
> NOTE to MODERATOR: I suggest that this debate be closed as inconclusive, otherwise it will go on and on.
> RTIwanted
> --- In, "sarbajitr" <sroy1947@> wrote:
> >
> > Dear Sunil,
> >
> > Your reasoning is fallacious. Such posts also tend to obfuscate the debate and confuse our members. Please reply para-wise or not at all.
> >
> > 1) The High Court remarked that the CIC is not a Court. Even for section 18 and 19 the CIC is not a Court. The CIC is however deemed to be a court for the restricted purposes of evidence / Indian Evidence Act 1872. The Court Fee Act 1870 requires court fee to be affixed on appeals filed before even Commissioners or other public servants. Because RTI ACT does not say that Court Fee Act is not applicable to RTI Act appeals, the court fees must be paid. Section 22 of RTI Act does not stay operation of CF Act. In fact the drafting of the RTI act shows that the application fees / further fees are in ADDITION to the fees of Court Fee Act or any other law in force (such as Stamps Act) by which fees may be charged (see section 22).
> >
> > 2) Where has anyone said that a clause of TRA Act enables fees to be charged under RTI Act ? The clause was cited as an example of why "foolish little RTI activists there heads stuffed full of nonsense" (a copyrighted phrase of this group) are barking up the wrong tree. Such logic strengthens the hands of those who want RTI activists to be banned on this group.
> >
> > 3) Does a single one of the clauses of RTI Act you have dug out where the word fee is mentioned EMPOWER the collection of fee (other than 27(2), 28(2))?
> >
> > 4) Since you do not appear regularly in the superior courts, you would not know the significance of Law Commission reports or the credibility they enjoy. In any case nobody is saying that the reports of the Law Commission have force of law.
> >
> > 5) Lastly, the proposition before this assembly is whether NGOs and RTI activists should be restricted or banned on this group. NGOs because they indulge in POV (Point of view) / agenda "pushing" and RTI activists being (insert copyrighted phrase here). It is impossible to reach any conclusion or ensure high standard of debate if the members / participants argue from fixed positions, refuse to consider views of others, and are unable to argue BOTH the "pro" and "con" positions with equal facility.
> >
> > Sarbajit
> >

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