Review By First Aa

[colnrkurup]

A doubt has arisen as to whether the First Appellate Authority can review its orders. Myself in person maintain that power to review its own orders is inherent in any judicial proceedings The Officer holding the powers of AA by virtue of the powers otherwise delegated to him may not have power to review his orders. But when he is excercising the powers of AA, in RTI he is a quasi-judicial authority having the powers of court to some extend. Eventhough while issuing other orders he become a functus officio, in the case of RTI Act when he excersie the powers of AA , to me he does not become functus officio and he can review his own orders.

The LAETST Supreme Court orders (Civil Appeal Nos.5097-5099 of 2004 decided on 07-3-2007 in the case of AV Papayya Sastry & Ors Vs Govt of
AP & Ors) it was held that
"No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim"

In case my contention is correct or tend to be correct this explanation can have far reaching effect in the time-frame of RTI Act. May I request my learned friends for their views ?

[karira]

colnrkurup,

The Act does not say specifically that the AA or even the CIC/SIC have the power of review of decision.

Definition of "Appeal" has been dealt extensively in CIC's decision:
http://cic.gov.in/CIC-Orders/Decision_22092006_2.pdf
(case involving disclosure of files relating to appointment of IC's and CIC)

“Appeal” is defined in the Oxford Dictionary as the transference of a case from
an inferior to a higher Court or tribunal in the hope of reversing or modifying the
decision of the former. In the Law Dictionary by Bouvier an appeal is defined as the
removal of a case from a Court of inferior jurisdiction to one of superior jurisdiction for
the purpose of obtaining a review and re-trial. In the Law Dictionary by Sweet, the
term “appeal” is defined as a proceeding taken to rectify an erroneous decision of a
Court by submitting the question to a higher Court or Court of Appeal. It is a settled
law that an appeal proceeding is a continuation of the original proceeding. A
decision by an appellate authority after issue of a notice and after a full hearing, in
presence of both the parties, replaces the judgment of the lower court/ authority. The
decision of the appellate authority is on merit and as such, it can vary, modify or
substitute its own decision in place of the decision of the inferior authority. In
appropriate cases, it can quash or set-aside the decision of the inferior authority and
can pass its own decision, which may be altogether different from that of the original
decision. An Appellate Authority may re-examine the matter and take fresh evidence,
if required, or if considered necessary.
In view of the legal position as stated above, the first Appellate Authority was
justified in setting aside the order of the CPIO. The first Appellate Authority was well
with in its ambit while taking up a new ground and to deny the information u/s 8(2) of
the Right to Information Act, 2005. On the same analogy, this Commission is
perfectly justified in looking into and considering, not only what the first Appellate
Authority decided but also what was decided by the CPIO. The submission of the
first Appellate Authority that this Commission should only consider the decision of the
first Appellate Authority and should not look into or consider the order of the CPIO, is
without any merit and as such, cannot be accepted.

Powers of the CIC (or for that matter, SIC's) to review their own decision have been also extensively discussed during the famous UPSC case.
http://cic.gov.in/CIC-Orders/Decision_20112006_5.pdf
(CIC held that it has powers of review)
Please read the full arguments of the appellant and the respondents in the above decision as well as the section titled "Decision & Reasons".

However, there are several decisions of the CIC (and I remember of some SIC's, although I do not have the relevant citations), where CIC has sent the case back to the Appellate Authority for a review.

1. http://cic.gov.in/CIC-Orders/Decision_13062006_2.pdf
Even from the comments, I cannot form a definite opinion about the availability of the
information sought, as while on the one hand the CPIO has stated that the information is not
available but on the other hand he has also stated all available information would be furnished to
the Court if called for. In view of this indefiniteness, I deem it fit to refer the matter back to the
appellate authority who shall examine/review the case once again and inform the appellant
whether the information sought for by her is available or not.

2. http://cic.gov.in/CIC-Orders/Decision_20102006_1.pdf
(Applicant asking the CIC for a review)
Being not satisfied with the above decision, the respondent filed a review
petition dated Sept 4, 2006 and sought an opportunity for hearing, which was
granted. Accordingly, the case was heard on Oct 18, 2006.

3. http://cic.gov.in/CIC-Orders/Decision_30062006_5.pdf
(Contrary decision, CIC says that it does not have powers to review)
The appellant was informed that in view of absence of any provisions in the
Act conferring powers on this Commission for review of its own decision, and in the
absence of valid grounds for a review in exercise of the Commission’s inherent
powers, his application for review cannot be entertained.

Overall, it looks a bit confusing.
Section 19 of the RTI Act deals with Appeals (both first and second).
So, if CIC/SIC say that they have power to review, then similarly the AA should also have power to review.

[karira]

colnrkurup,

The CIC (Management) Regulation 2007 in Sec 23(2) gives CIC the power to review a decision:

An appellant or a complainant or a respondent may, however,
make an application to the Chief Information Commissioner for
special leave to appeal or review of a decision or order of the case
and mention the grounds for such a request;

The Chief Information Commissioner, on receipt of such a request,
may consider and decide the matter as he thinks fit.

[karira]

Please also read the following thread:

http://www.rtiindia.org/forum/3182-r...ances-cic.html

[taurus]

Reading all these decisions, it appears that review is possible only when someone asks for it. Even then some conditions like new evidence etc are to be fulfilled. There appears to be no provision for a suo motto review. Other wise there will be no finality of the decision. One never knows when an authority will wake up and review its own decision without provocation! Keeping all this in view it is apparent that the first appellate authority also can review its decision, provided the information seeker asks for it showing adequate cause. No harm in making a sincere effort to be more transparent.

[sidmis]

I have a diametrical view on this.

I would always prefer the AA not to have any explicit power to review his/her decisions.

Is there any provision in the Act that prevents the PIOs to ask for review of AAs decision?
At least it can be done in the garb of Principles of Natural Justice.

The PIOs may use this route to seek reversal of AA's decision which
might have gone(accidentally !) in favour of the Appeallant.

It will be more often be used/misused/abused by the PIOs rather than the Appellants.

Sidharth