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R.K. JAIN Vs. CHAIRMAN, INCOME TAX SETTLEMENT COMMISSION & ORS.
December, 11th 2014
           THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Judgment delivered on: 05.12.2014

+       W.P.(C) 2939/2014
R.K. JAIN                                                 ..... Petitioner

                                   versus
CHAIRMAN, INCOME TAX SETTLEMENT
COMMISSION & ORS.                                         ..... Respondents

Advocates who appeared in this case:
For the Petitioner   : Mr Rajveer Singh.
For the Respondents  : Mr P. Roychaudhuri.

CORAM:-
HON'BLE MR JUSTICE VIBHU BAKHRU

                               JUDGMENT

VIBHU BAKHRU, J

1.      The petitioner, inter alia, impugns an order dated 14.02.2014 passed
by respondent no. 3 ­ Central Public Information Officer & Administrative
Officer, Income Tax Settlement Commission, denying the information,
which was earlier directed to be supplied to the petitioner under the
provisions of the Right to Information Act, 2005 (hereafter the `RTI Act').

2.      The impugned order indicates that the order dated 26.09.2013 passed
by respondent no. 2 pursuant to an application filed by the petitioner under
the RTI Act; and the order dated 21.10.2013 passed by respondent no. 4 in
an appeal preferred by the petitioner against the order dated 26.09.2013,
were set aside as being void ab-initio by respondent no. 1 as an





W.P.(C) No. 2939/2014                                            Page 1 of 8
administrative head of the Income Tax Settlement Commission.

3.      The principal controversy to be addressed is whether, respondent
no.1 could declare by an administrative order, the orders passed by
respondent nos. 2 & 4 as being void ab-initio.

4.      Briefly stated, the relevant facts necessary for considering the
controversy in the present petition are as under:-

4.1     The petitioner had filed an RTI application seeking information, inter
alia, with respect to disposal and pendency of matters before the Income
Tax Settlement Commission. In response to this application, respondent
no.2 (CPIO and Joint Commissioner of Income Tax, Income Tax
Settlement Commission) passed an order dated 26.09.2013 furnishing
certain information to the petitioner. However, by the said order certain
other information as sought for was denied. The petitioner preferred an
appeal before respondent no 4, who was specified as the First Appellate
Authority.        The said appeal was partly allowed by an order dated
21.10.2013.

4.2     The petitioner sent a letter dated 23.10.2013 to respondent no.2
seeking compliance of the order dated 21.10.2013, however, received no
response thereto. Thereafter, the petitioner sent another reminder dated
09.03.2014 and subsequent thereto received the impugned order on
15.03.2014, which was issued by respondent no. 3 (and not by respondent
no. 2 who had passed the earlier order as the CPIO). The impugned order
referred to an administrative order passed by the respondent no. 1; the
extract of which as quoted in the impugned order reads as under:



W.P.(C) No. 2939/2014                                             Page 2 of 8
           "As there has been total no-compliance by the JDIT-II and
           DIT(Inv) of the provisions of the RTI Act, 2005 and
           notification by the Chairman, ITSC, New Delhi order No. C-
           26016/1/05/SC-RTI/1178 dated 29/31-07-2013, the orders of
           even numbers dated 26.09.2013 and 21.10.2013 passed by the
           JDIT and DIT(Inv) are ab initio void and are annulled. The
           RTI application will be disposed of in accordance with the
           provisions of the RTI Act, 2005 and notification by the
           Chairman, ITSC, New Delhi order No.C-26016/1/05/SC-
           RTI/1178 dated 29/31-07-2013 by the Administrative Officer,
           (CPIO) ITSC, Principal Bench, New Delhi at the earliest."
5.      The learned counsel appearing for the petitioner contends that the
orders passed by the CPIO (i.e. respondent no 2) and the First Appellate
Authority (i.e. respondent no. 4) could not be denied or declared as void by
an administrative order. This is disputed by the learned counsel appearing
for the respondents who submits that the Chairman, Income Tax Settlement
Commission, being the overall administrative head of the department,
would have the inherent power to pass an administrative order in respect of
any order passed by the other sub-ordinate officers. He contends that
respondent nos.2 and 4 were not the designated authorities under the RTI
Act with respect to the information sought by the petitioner since the
information pertained to another wing of the department.

6.      It is not disputed that the orders dated 26.09.2013 and 21.10.2013
were orders passed under the RTI Act and in that sense were in exercise of
statutory powers. I am unable to accept that such orders passed in exercise
of statutory powers could be declared as a nullity or void by an
administrative order without recourse to the hierarchy of authorities as



W.P.(C) No. 2939/2014                                           Page 3 of 8
specified in the statute ­ the RTI Act. In the event, the respondent no.1 was
of the view that the orders passed by respondent nos.2 & 4 were without
authority of law, the proper and the only course would be to file an appeal
before the Central Information Commission (hereafter the `CIC') or any
other competent judicial forum. However, the said orders could not be
nullified by an administrative order.

7.      In CIT v. Greenworld Corpn.: (2009) 7 SCC 69, the Supreme Court
while considering the role of the superior officers over the income tax
authorities exercising power under the Income Tax Act, 1961 held as
under:-

           "55. When a statute provides for different hierarchies
           providing for forums in relation to passing of an order as also
           appellate or original order, by no stretch of imagination a
           higher authority can interfere with the independence which is
           the basic feature of any statutory scheme involving
           adjudicatory process."
8.      It is well settled that even if an order is a nullity, it would continue to
be effective unless set aside by a competent body or Court. In this case
respondent no. 1 is not authorised under the RTI Act to interfere with the
orders passed under the RTI Act. The Supreme Court in State of Punjab
and Ors v. Gurdev Singh: (1991) 4 SCC 1 held as under:

          "7. ... If an Act is void or ultra vires it is enough for the court
          to declare it so and it collapses automatically. It need not be
          set aside. The aggrieved party can simply seek a declaration
          that it is void and not binding upon him. A declaration merely
          declares the existing state of affairs and does not `quash' so as
          to produce a new state of affairs.




W.P.(C) No. 2939/2014                                                 Page 4 of 8
          8. But nonetheless the impugned dismissal order has at least a
          de facto operation unless and until it is declared to be void or
          nullity by a competent body or court. In Smith v. East Elloe
          Rural District Council [1956 AC 736, 769 : (1956) 1 All ER
          855, 871] Lord Radcliffe observed: (All ER p. 871)

                    "An order, even if not made in good faith, is
                    still an act capable of legal consequences. It
                    bears no brand of invalidity on its forehead.
                    Unless the necessary proceedings are taken at
                    law to establish the cause of invalidity and to
                    get it quashed or otherwise upset, it will remain
                    as effective for its ostensible purpose as the
                    most impeccable of orders."

          9. Apropos to this principle, Prof. Wade states [ See Wade:
          Administrative Law, 6th edn., p. 352] : "the principle must be
          equally true even where the `brand' of invalidity" is plainly
          visible; for there also the order can effectively be resisted in
          law only by obtaining the decision of the court. Prof. Wade
          sums up these principles: [ Ibid.]

                    "The truth of the matter is that the court will
                    invalidate an order only if the right remedy is
                    sought by the right person in the right
                    proceedings and circumstances. The order may
                    be hypothetically a nullity, but the court may
                    refuse to quash it because of the plaintiff's lack
                    of standing, because he does not deserve a
                    discretionary remedy, because he has waived his
                    rights, or for some other legal reason. In any
                    such case the `void' order remains effective and
                    is, in reality, valid. It follows that an order may
                    be void for one purpose and valid for another;
                    and that it may be void against one person but
                    valid against another."

          10. It will be clear from these principles, the party aggrieved
          by the invalidity of the order has to approach the court for



W.P.(C) No. 2939/2014                                                     Page 5 of 8
          relief of declaration that the order against him is inoperative
          and not binding upon him. He must approach the court within
          the prescribed period of limitation. If the statutory time limit
          expires the court cannot give the declaration sought for."

9.      The learned counsel appearing for the respondents further submits
that the present writ petition ought not to be entertained as the petitioner
would have an alternative remedy to approach the CIC by way of a
complaint under Section 18(1) of the RTI Act. The learned counsel has
specifically referred to Section 18(1)(f) of the RTI Act which reads as
under:-

            "18.     Powers      and     functions    of   Information
            Commissions.-- (1) Subject to the provisions of this Act,
            it shall be the duty of the Central Information Commission
            or State Information Commission, as the case may be, to
            receive and inquire into a complaint from any person,--
            xxxx        xxxx       xxxx         xxxx         xxxx
            (f) in respect of any other matter relating to requesting or
            obtaining access to records under this Act."

10.     Undoubtedly, the CIC would have the power to enquire into any
complaint in respect of matters relating to access of information under the
RTI Act. However, it is apparent, in the present, case that respondent no.1
has acted without authority of law in nullifying orders passed under the RTI
Act; thus, interference with the impugned order is warranted in these
proceedings.




11.     The petitioner has specifically pleaded that the website of the Income
Tax Settlement Commission had disclosed respondent no.2 as the CPIO.
The same has not been disputed by the respondents. It is noted that by



W.P.(C) No. 2939/2014                                               Page 6 of 8
virtue of Section 4(1)(b)(xvi) of the RTI Act, the public authority is
required to publish the name, designation and particulars of public
information officers. Admittedly, the name and designation of respondent
no.2 and no other, was published as the CPIO in relation to the Principal
Bench of the Income Tax Settlement Commission. In the circumstances, the
petitioner has alleged that, in fact, respondent no.2 and respondent no.4
were the respective CPIO and the First Appellate Authority of the
concerned public authority. According to the petitioner, the administrative
order of respondent no.1 referred to in the impugned order was conjured up
only to overreach the order dated 21.10.2013 passed by the First Appellate
Authority as the same was found to be inconvenient. The learned counsel
for the petitioner has further pointed that the copy of the administrative
order has also not been produced by the respondents. In addition, the
petitioner has alleged that the impugned order is antedated as although it is
dated 14.02.2014, the same was received by the petitioner on 15.03.2014.

12.     Although the allegations made by the petitioner may warrant an
enquiry, I am not inclined to examine the same in these proceedings and it
would be open for the petitioner to approach the CIC under Section 18 of
the RTI Act in respect of these allegations. The CIC has the necessary
power to initiate an enquiry in respect of such complaints by virtue of
Section 18(2) of the RTI Act.

13.     In view of the above, the impugned order is set aside. However, it
will also be open for the respondents to approach the CIC to assail the
orders dated 26.09.2013 and 21.10.2013 passed by respondent no.2 and
respondent no.4 respectively. Needless to mention that if an appeal is filed



W.P.(C) No. 2939/2014                                            Page 7 of 8
before the CIC by the public authority (the Income Tax Settlement
Commission), the same would be considered in accordance with law.




                                                VIBHU BAKHRU, J
DECEMBER 05, 2014
RK




W.P.(C) No. 2939/2014                                       Page 8 of 8

 
 
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