Central Information Commission
Girish Mittal vs Reserve Bank Of India on 13 July, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/RBIND/A/2022/607621
Girish Mittal ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Department of Banking Supervision,
Reserve Bank of India, RTI Cell,
World Trade Centre, Cuffe Parade, Colaba,
Mumbai-400005, Maharashtra. .... ितवादीगण /Respondent
Date of Hearing : 27/06/2023
Date of Decision : 27/06/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 01/05/2021
CPIO replied on : 31/05/2021
First appeal filed on : 03/06/2021
First Appellate Authority order : Not on record
2nd Appeal/Complaint dated : 06/02/2022
1
Information sought:
The Appellant filed an RTI application dated 01.05.2021 seeking the following information:
"Kindly provide following information:
Inspection Reports/Risk Assessment Report made by RBI post completing the Inspection of commercial banks and NBFCs for last 3 years available. If RBI has provided any of the below information earlier, the same may be Indicated In the response quoting the date/ RTI number under which the same was provided:
(I) HDFC Bank.
(II) RBL Bank.
(III) Yes Bank.
(Iv) Axis Bank.
(v) ICICI Sank.
(vI) Baja) Finance.
(vvI) State Bank of India.
(viii) Bank of Baroda.
(Ix) Indus Ind Bank.
(x) Kotak Mahindra Bank.
(xi) HDFC Ltd.
(xii) ILFS
(xiii) IDFC Bank
(xiv) sahara India Financial Services or any entity of Sahara group registered with RBI.
Kindly also provide copies of show cause notices issued to any of the above and response of these banks/NBFCs."
The CPIO furnished a pointwise reply to the appellant on 31.05.2021 stating as under:
"1. HDFC Bank:
As regards the Inspection Reports/ Risk Assessment Reports for the years 2017-18 & FY 2018-19, we have issued notice u/s 11(1) of the RTI Act, 2005 to the bank concerned. On receipt of reply from the bank, further communication will be made.2
As regards the Risk Assessment Report/Inspection Report for the year 2019- 20, it is informed that the supervisory process/ action in the matter is not yet complete. Disclosure of such information at this stage is considered premature in terms of Para 77 of the Hon'ble Supreme Court Judgement dated December 16, 2015 in 'Reserve Bank of India vs. Jayantilal Mistry Case' [2016 (3) SCC 525]. Hence the information is exempt from disclosure under Section 8(1)(a) of the RTI Act, 2005.
2. RBL Bank:
As regards the Risk Assessment Reports/Inspection Reports for the years 2017-18, 2018-19 and 2019-20, it is informed that the supervisory process/ action in the matter is not yet complete. Disclosure of such information at this stage is considered premature in terms of Para 77 of the Hon'ble Supreme Court Judgement dated December 16, 2015 in 'Reserve Bank of India vs. Jayantilal Mistry Case' [2016 (3) SCC 525]. Hence the information is exempt from disclosure under Section 8(1)(a) of the RTI Act, 2005.
3., 4 & 5: Yes Bank, Axis Bank , 5. ICICI Bank:
As regards the Inspection Reports/ Risk Assessment Reports for the years 2017-18 & 2018-19, we have issued notice u/s 11(1) of the RTI Act, 2005 to the bank concerned. On receipt of reply from the bank, further communication will be made.
As regards the Risk Assessment Report/Inspection Report for the year 2019- 20, it is informed that the supervisory process/ action in the matter is not yet complete. Disclosure of such information at this stage is considered premature in terms of Para 77 of the Hon'ble Supreme Court Judgement dated December 16, 2015 in 'Reserve Bank of India vs. Jayantilal Mistry Case' [2016 (3) SCC 525]. Hence the information is exempt from disclosure under Section 8(1)(a) of the RTI Act, 2005.
6. Bajaj finance:
As regards the Annual Financial Inspection Reports for the years 2017-18 & 2018-19, we have issued notice u/s 11(1) of the RTI Act, 2005 to the company. On receipt of reply from the company, further communication will be made.
As regards the Risk Assessment Report/Inspection Report for the year 2019- 20, it is informed that the supervisory process/ action in the matter is not yet complete. Disclosure of such information at this stage is considered premature in 3 terms of Para 77 of the Hon'ble Supreme Court Judgement dated December 16, 2015 in 'Reserve Bank of India vs. Jayantilal Mistry Case' [2016 (3) SCC 525]. Hence the information is exempt from disclosure under Section 8(1)(a) of the RTI Act, 2005.
7, 8, 9 & 10: SBI, Bank of Baroda , IndusBAnk, Kotak Mahindra Bank As regards the Inspection Reports/ Risk Assessment Reports for the years 2017-18 & 2018-19, we have issued notice u/s 11(1) of the RTI Act, 2005 to the bank concerned. On receipt of reply from the bank, further communication will be made.
As regards the Risk Assessment Report/Inspection Report for the year 2019- 20, it is informed that the supervisory process/ action in the matter is not yet complete. Disclosure of such information at this stage is considered premature in terms of Para 77 of the Hon'ble Supreme Court Judgement dated December 16, 2015 in 'Reserve Bank of India vs. Jayantilal Mistry Case' [2016 (3) SCC 525]. Hence the information is exempt from disclosure under Section 8(1)(a) of the RTI Act, 2005.
11. HDFC Ltd.:
It has been partially transferred to NHB under Section 6(3) of RTI Act, 2005, for furnishing direct reply to the applicant.
12. ILFS:
As regards the Risk Assessment Reports/Inspection Reports for the years 2017-18, 2018-19 & 2019-20, it is informed that the supervisory process/ action in the matter is not yet complete. Disclosure of such information at this stage is considered premature in terms of Para 77 of the Hon'ble Supreme Court Judgement dated December 16, 2015 in 'Reserve Bank of India vs. Jayantilal Mistry Case' [2016 (3) SCC 525]. Hence the information is exempt from disclosure under Section 8(1)(a) of the RTI Act, 2005.
13. IDFC Bank:
As regards the Inspection Reports/ Risk Assessment Reports for the years 2017-18 & 2018-19, we have issued notice u/s 11(1) of the RTI Act, 2005 to the bank concerned. On receipt of reply from the bank, further communication will be made. 2. As regards the Risk Assessment Reports/Inspection Reports for the year 2019-20, it is informed that the supervisory process/ action in the matter is not yet complete. Disclosure of such information at this stage is considered premature in 4 terms of Para 77 of the Hon'ble Supreme Court Judgement dated December 16, 2015 in 'Reserve Bank of India vs. Jayantilal Mistry Case' [2016 (3) SCC 525]. Hence the information is exempt from disclosure under Section 8(1)(a) of the RTI Act, 2005.
14. Inspection of Sahara India Financial Corporation Limited or Sahara India Corp Investment Limited has not been conducted in last three years (Since April 01, 2018).
Point NO.2 :
The information as desired by the applicant is not maintained in compiled manner and compilation thereof for replying to the RTI application, will divert our resources in a disproportionate manner. Hence, we are unable to provide information in terms of Section 7(9) of RTI Act, 2005.
Point NO.3:
As regards the copies of Show cause notices issued to the above mentioned entities during the period three years prior to the date of the application i.e. May 2018 to April 2021, we have issued notice u/s 11(1) of the RTI Act, 2005 to the entities concerned (State Bank of India [RAR 2017], IndusInd Bank Ltd. [RAR 2019], HDFC Bank Ltd. [RAR 2017] and Bajaj Finance Ltd. [IR 2018 and IR 2019]). On receipt of reply from the entities, further communication will be made."
Being dissatisfied, the Appellant filed a First Appeal dated 03.06.2021. FAA's order, if any, is not on record.
Feeling aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through Video-Conference.
Respondent: Shri Vinod Kumar, DGM and Shri Abhijeet Kaushal, Legal Officer present through Video-Conference.
The written submissions of the Appellant and the Respondent are taken on record.5
The Appellant, during the hearing, reiterated the contents of his RTI application and instant appeal and submitted that the Respondent has wrongly not provided information to him on his RTI application. He further submitted that the information denied is been covered in the directions of Hon'ble Supreme Court in Jayantilal Mistry case as well as the contempt petition in Girish Mittal case. Also, Hon'ble Delhi High Court in Commr. Of Police v. D.K. Sharma, WP (C) No. 12428 of 2009, dated 15-12-2010, wherein it was held that: "...Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification reference to one of the specific clauses under Section 8 (1) of the RTI Act." No justification has been showed by the CPIO under section 8(1) of the RTI Act, 2005.
The Appellant further reiterated his written submissions, which states as under: "In the judgment under review, this Court has also held after examining the provisions of the Act that the Information Commission decides matters which may affect the rights of third parties and hence there is requirement of judicial mind. For example, under Section 8(1)(d) of the Act, there is no obligation to furnish information including commercial confidence, trade secrets, or intellectual property, the disclosure of which would harm the competitive position of the third party, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. Similarly, the right to privacy of a third party, which is part of his personal liberty under Article 21 of the Constitution, may be breached if a particular kind of information, purely of personal nature may be directed to be furnished by the concerned authority. To protect the rights of third parties, Section 11 of the Act provides that where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record or part thereof, may on a request made under the Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, a written notice will have to be given to such third party inviting such party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party can be kept in view while taking a decision about disclosure of the information. The decision taken by the Central Public Information Officer or the State Public Information Officer, as the case may be, under Section 11 of the Act is appealable under Section 19 of the Act before the Information Commission and when the Information Commission decides such an appeal, it decides only whether or not the information should be furnished to the citizen in view of the objection of the third party. Here also the Information Commission does not decide the rights of a third party but only whether the information which 6 is held by or under the control of a public authority in relation to or supplied by that third party could be furnished to a citizen under the provisions of the Act.
Hence, the Information Commission discharges administrative functions, not judicial functions."
The Respondent, during the hearing, reiterated the contents of their written submissions, which states as under:
"The Appellant preferred Second Appeal before this Hon'ble CIC wherein he has contended that that the CPIO denied information on flimsy grounds and that the FAA order Is not on record. The Information denied is covered in the directions of Hon'ble Supreme Court In Jayantilal Mistry case as well as the contempt petition in Girish Mittal case. 7. It is humbly submitted that the CPIO has duly discharged his duties in accordance with the provisions of the RTI Act. It is submitted that though Supreme Court in the matter of Jayantilal N Mistry has directed Reserve Bank to uphold the public interest and not the interest of any bank and directed to disclose the Information, it has not forbidden the public authority to follow the procedure as contemplated under RTI Act. Further, in the matter of Girlsh Mittal, Supreme Court has observed that the respondents (, Reserve Bank of India) are duty bound to furnish all information relating to inspection reports and other materials apart from material that was exempted in para 77 of the judgement' in Reserve Bank of India v. Jayantilal Mistry Case. Hence, the contention of the appellant that the CPIO has denied the information on flimsy grounds is incorrect and denied, it is submitted that the CPIO has utmost regard to the judicial and quasi-judicial authorities of the Country and all the actions taken by the CPIO is in accordance with the law. 8. As regards allegation of the Appellant that FAA order was not provided, the same is denied as incorrect. It is submitted that the FAA order dated 10.08.2021 dismissing the first appeal dated 16.07.2021 filed by the appellant was uploaded on the RTI portal on the very same day itself i.e., 10.08.2021. Further, the said order was also forwarded to the Appellant vide letter dated 11.08.2021 sent through speed post on 11.08.2021. The said letter has not returned undelivered and is deemed served upon the appellant. A copy of the forwarding letter and speed post receipt is annexed herewith and marked as Annexure-4 (colly). 9. It is humbly submitted that in the present RTI application filed by the applicant, for disclosure of information, the CPIO had followed procedure contemplated under Section 11 of the RTI Act, 2005. The third parties concerned (Nine banks and One NBFC) had filed first appeal(s) against the decision of the CPIO to disclose the information vide notice issued Section 11 (3) of the RTI Act.
Since FAA has upheld the decision of the CPIO to disclose the information, the affected third parties have filed second appeal(s) against respective FAA order(s).
7While disposing of these second appeals, Hon'ble CIC vide order dated 05.05.2022 remanded the matters to the CPIO for adjudication afresh. In compliance to directions contained in aforesaid CIC order, the CPIO had issued fresh notices to third parties concerned under Section 11 (1) & (2) of the RTI Act, 2005 and after considering their responses and after according opportunity of personal hearing to all the parties concerned, the CPIO had Issued notices under Section 11 (3) to the third parties conveying his decision to disclose the information after redacting the information under applicable exemptions as provided under Section 8 (1) of the RTI Act, 2005. Again, the third parties had filed first appeals against the CPIO's decision which was dismissed by the FAA and aggrieved, they have filed second appeal(s) against the respective FAA order(s), which are pending adjudication before Hon'ble CIC".
Decision:
In the facts of the instant case, it is pertinent to note that a decision of a coordinate bench of the Commission in the matter of various third-party banks vs. RBI vide File No. CIC/RBIND/A/2021/152460 + Ors. dated 05.05.2022 covers a detailed discussion inter alia on the same nature of information sought for from the RBI and the reliance placed by RBI on the Jayantilal Mistry case. Suffice to say that the issues raised in the instant case are encapsulated in that same discussion of the coordinate bench in the following manner:
"39. A comprehensive view has to be taken on the objection filed by the institutions. These objectives has to be deliberated and adjudicated in the light of Jayantilal Mistry's case and other judicial pronouncements relevant in such matter, some of which have been referred by the Commission in the above parts as well. The Commission while examining various objections realize that the Writ Petitions filed before the Hon'ble Supreme Court of India is seeking directions of the Supreme Court for non-disclosure of certain aspects of these audit/inspection report and any such guidance in these Writ Petitions will have direct bearing and provide further clarity to the CPIO/FAA in adjudicating various aspects of disclosure/non-disclosure of reports or the information/data which are part of these reports under the provisions of the RTI Act. The Commission takes note that all the cases/second appeals filed herein are based on interpretations of RBI Vs. Jayantilal Mistry case and other relevant judicial pronouncements requesting for full disclosure vis-à-vis with exemptions under Section 8(1) of the RTI Act for non- disclosure of full or parts of these reports.8
40. In view of the above observations, the Commission is of the view that the reports generated in the hands of regulatory public authority in discharge of its statutory obligations are information under Section 2 (f) of the RTI Act, as the regulator and the regulated entities are not governed by fiduciary relationship. The orders of the Commission to their effect has been upheld by the Hon'ble Supreme Court in Jayantilal Mistry's case and the position is unchanged even today. Various objections filed by banks/financial institutions, to be examined, analyzed and adjudicated upon, are related to various data and information submitted to the Reserve Bank of India by these financial institutions explaining their operations, commercial decisions, clients data etc. under statutory obligations can be disclosed as such. There are apparently two set of such information which have been shared by the institutions with the regulator under statutory obligation. First is the information/data of clients relating to their business/commercial operations, financial transactions, business and commercial strategy which is shared by clients with financial institutions in full trust and confidence and is held by them in fiduciary capacity, protected from disclosure under the RTI Act in their hands. Second set is the information relating to business strategy, decisions, transactions, other operational data etc. of financial institutions have been bearing on their competitive position which also enjoys the exemption from disclosure in their hands, if it is a public authority or otherwise, under the RTI Act. Some of such data, on case to case basis be sensitive enough for protection of national interest. The Commission is of the view that the protection of disclosure of information under Section 8(1) of the RTI Act, 2005 in the hands of financial institutions does not evaporate once such data/information is shared, in good faith and trust, with the regulator under statutory obligation. Various observations of Hon'ble Supreme Court in Jayantilal Mistry's case also does not indicate so and decision of the regulator to consider redacting such data/information while disclosing the reports is aligned with this and other judicial pronouncements of Supreme Court and High Courts.
41. The Commission has already outlined the deficiency in the conduct of the CPIO/FAA while hearing such matters and hence is of the opinion that due care has to be taken by according opportunity of personal hearing and making reasoned order with reference to the objections in the hands of the CPIO and later in the hands of FAA, if any appeal is preferred. Hence, the CPIO will be required to adjudicate such RTI applications in the light of the observations of the Commission afresh. The Commission also expects that the CPIO will take view on various objections filed by the Banks and Financial Institutions and submissions made by applicant to reach the decision in favour or against redaction of various parts of the report on case to case basis. He has to factor the observation of Hon'ble 9 Supreme Court in Jayantilal Mistry case and other relevant judgments, some of which have been referred in this order as well. Hence, with these observations the orders passed by the CPIO and FAA in these matters are set aside and the cases are being remanded to the CPIO for adjudication afresh. (Emphasis Supplied)
42. It is amply clear that Writ Petition Nos. 1159/2019 and 768/2021 and others tagged are admitted in Hon'ble Supreme Court wherein guidance and direction has been sought on non-disclosure of certain type of information which are essentially the part of the Annual Inspection Report/RAR, etc. These petitions also seek protection of interim communication between regulator and the regulated entity in the process of finalization of these reports or otherwise. It is obvious that decision in these Writ Petitions will provide clarity and guidance to the Public Authority on redaction/non-disclosure of a set of information inspite of being part of these reports which are open to disclosure. At this stage, any decision by the Public Authority will amount to pre-judging the issues pending admitted Writ Petitions before the Hon'ble Supreme Court. Various banks, financial institutions, respondent public authority and the RTI applicant have already impleaded party and are presenting their arguments before the Apex Court.
43. Hence, any decision of redaction or disclosure of information, without waiting for decision in the Writ Petition Nos. 1159/2019 and 768/2021 and others tagged may cause irrevocable damage against right of privacy and protection of commercial interest. Hence, the respondent public authority if expedient may wait for the outcome in Writ Petition Nos. 1159/2019 and 768/2021 and others tagged or seek clarification from the Hon'ble Court and accordingly decide these RTI applications by following process as enumerated in the earlier paras by the Commission in the interest of principles of natural justice. While disclosing the information they should be cautious in taking a considerate view balancing right to privacy, protection of national and commercial interest on one hand vis-à-vis larger public interest. (Emphasis Supplied)
44. It is further observed that similar view has also been taken by the Division Bench of the Commission in file bearing nos. CIC/VS/A/2013/001488 and CIC/VS/A/2013/001805 dated 11.05.2017 wherein the Commission observed that 'Having considered the submissions of both the parties, the Commission observes that since a similar issue is pending adjudication before the Hon'ble Supreme Court in the matter of Central for Public Interest Litigation Vs. Housing & Urban Development Corporation Ltd. &Ors., it would be judicious to await the final outcome from the Hon'ble Supreme Court. However, on receipt of the final outcome from the Hon'ble Supreme Court in the matter, the appellant shall be at 10 liberty to file second appeal afresh, if he so desires. The instant appeals are disposed of'."
The above decision is therefore applicable to the instant case and no separate line of adjudication is warranted in the matter. The stipulations contained in File No. CIC/RBIND/A/2021/152460 + Ors. dated 05.05.2022 stands endorsed to the Respondent CPIO with emphasis on para 41 & 43 supplied as above .
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 11