Central Information Commission
Faiz Ur Rehman vs Ministry Of Civil Aviation on 22 December, 2016
CENTRAL INFORMATION COMMISSION
Room No. 06, Club Building, Old JNU Campus
New Delhi -110067. Tel: 011 - 26182597, 26182598
Appeal No.:-CIC/RK/A/2016/001190-BJ-Final
Appellant : Mr. Faiz Ur Rehman,
A - 1110, Shipra NEO,
Indirapuram, Ghaziabad - 201014 UP.
Respondent : I. CPIO & ED (C.A.), AGM (O.A.),
Air India Ltd. Airlines House,
113, Gurudwara Rakabganj Road,
New Delhi 110001.
II. CPIO & DGM - Finance,
Air India, Old Airport, Kalina, Santa Cruz (E),
Mumbai - 400029
Date of Hearing : 17/10/2016
Date of Decision : 17/10/2016
Date of final hearing: 19/12/2016
Date of final decision: 22/12/2016
Date of filing of RTI application 27.10.2015
CPIO's response 03.11.2015
Date of filing the First appeal 23.11.2015
First Appellate Authority's response 25.01.2016
Date of filing second appeal before the Commission 14.03.2016
ORDER
FACTS:
The appellant vide his RTI application dated 27.10.2015 sought copy of the joint Venture (JV) agreement between Air India & SATS.
The CPIO, vide its reply dated 03.11.2015 stated that the information sought by the appellant was confidential in nature and hence exempted from disclosure as per section 8 (1) (d) of the RTI Act, 2005. Dissatisfied with the reply of the CPIO, the appellant approached the FAA on 23.11.2015. The FAA vide its order dated 25.01.2016 concurred with the findings of the CPIO and DGM- Finance dated 19.01.2016.
HEARING:
Facts emerging during the hearing on 17/10/2016:
"The following were present:
Appellant: Mr. Faiz Ur Rehman (M:9654342819);
Respondent: Mr. Milan Shah, DGM(Finance)/APIO (M:9870403339) through TC;Page 1 of 8
The Commission observes that a matter on similar issue is pending adjudication before the Commission in appeal no. CIC/BJ/A/2016/000063 dated 24/08/2016, 20/09/2016 and 17/10/2016.
INTERIM DECISION Keeping in view the facts of the case and the submissions made by both the parties, the Commission adjourns the hearing in the matter for a period of two weeks and directs the Dy. Registrar to fix a suitable date of hearing in this matter together with the matter in CIC/BJ/A/2016/000063 after a period of two weeks.
The matter is adjourned."
Note: Subsequently Dy. Registrar, CIC vide notice dated 26/10/2016 had fixed 15/11/2016, as the next date of hearing. However, the respondent, vide e-mail dated 09.11.2016, cited their inability to attend the hearing on the designated date and time and also sought additional time to frame suitable response to safeguard their as well as their JV's interest. The Dy. Registrar vide its letter dated 01.12.2016 and with the approval of the Commission and appellant, fixed 19.12.2016 as the next date of hearing.
HEARING:
Facts emerging during the hearing on 19/12/2016:
The following were present:
Appellant: Mr. Faiz Ur Rehman (M:9654342819);
Respondent: Mr. Milan Shah, DGM(Finance)/APIO (M:9870403339) and Mr. Mahindra Ambedkar, Manager - Finance (M. 9833063240) through VC;
The respondent vide letter dated 07.10.2016, provided their preliminary and para-wise submissions against the appeal. It was stated in the preliminary submission that the information sought by appellant was exempt from disclosure as per section 8 (1) (d) of the RTI Act, 2005 since information about SATS (Foreign Company based in Singapore) cannot be given to an individual without seeking the consent from the third party (SATS) since the information included matters of commercial confidence, trade secrets or intellectual property, disclosure of which would harm the competitive position of the third party. It was also argued that disclosure could deeply hamper cordial relationship and business understanding developed between Air India and SATS as well as hamper business relationship between India and Singapore as the information sought was of confidential nature.
The respondent cited the decisions of the Commission in Kulbhushan Jain v. SEBI, CIC/AT/A/2008/00001565 dated 17.07.2009 and Shri Anshul Raj v. SEBI CIC/AT/A/2008/01409 dated 15.05.2009. It was further submitted that the document requested for related to a Joint Venture (JV) in which the Government of India (GOI) had only 50 percent stake which went on to show that GOI did not control or own the said JV, thereby exempting the same from falling within the purview of "public authority" as defined under Page 2 of 8 Section 2(h) of the RTI Act, 2005. Also, the JV was registered as a private limited company w.e.f. 20th April, 2010. The respondents also contended that the contract entered into between both the companies embodied essential character of fiduciary relationship between them whereas, it was the bounden duty of both the companies to prevent unwarranted invasion into the privacy of two legally recognized entities. The respondent sought rejection of the appeal on the ground that the contents mentioned in the second appeal are vague, ambiguous, after thought, wrong, incorrect, misconceived and strongly objectionable and liable to be rejected.
The appellant vide his written submission dated 18.10.2016, provided a response to the written submission of respondent sent to the Commission. The appellant argued that the respondent re-iterated the same points which were presented by the FAA except citing two orders of the Commission in the case of Kulbhushan Jain v. SEBI, CIC/AT/A/2008/00001565 dated 17.07.2009 and Shri Anshul Raj v. SEBI CIC/AT/A/2008/01409 dated 15.05.2009. The appellant however submitted that the two cases revolved around information pertaining to individuals and hence the appeals were rejected. It was argued that the information sought in the present instance was not related to individuals but an agreement entered by a public authority for discharging public duty and involved substantial funding by GOI through its wholly controlled entity called Air India. The appellant asserted that the activities were carried out on public land and therefore must be open to public scrutiny. Furthermore, the appellant rebutted the contentions of respondents and stated that no new facts were raised by him before the Commission vis a vis' the proceedings before the FAA. The appellant also cited the decision of the Hon'ble High Court of Delhi in Jamia Millia Islamia v. Ikramuddin WP (C) No. 5677/2011 dated 22.11.2011 wherein the following was held "The act of entering into an agreement with any other person/entity by a public authority would be a public activity, and as it would involve giving or taking of consideration, which would entail involvement of public funds, the agreement would also involve public interest. Every citizen is entitled to know on what terms the Agreement/settlement has been reached by the petitioner public authority with any other entity or individual."
The appellant submitted that the cases quoted by the respondent were quasi judicial pronouncements whereas the judgement quoted by him was a judicial order of a high court. It was also argued that section 2 (h) of the RTI Act, 2005 was also invoked due to substantial funding by the government. It was also argued that the public authority is largely funded by the government and as a citizen he had every right to know about the investments carried out by the public entity in the larger interest of the public.
In the meanwhile, the respondent, vide e-mail dated 09.11.2016, cited their inability to attend the hearing on 15.11.2016 and sought additional time to Page 3 of 8 frame suitable response in consultation with their lawyers to safeguard their as well as their JV's interest.
Subsequently, the respondent submitted a written response vide their email dated 19.12.2016, reconfirming and reiterating their written submission dated 07.10.2016. It was argued that the provisions of RTI Act, 2005 does not apply to this joint venture agreement. They claimed exemption under Section 8(1)(d) and (e) of the RTI Act, 2005, emphasizing upon the adverse impact on the economic interest of the players as also sensitivity of its relations with a foreign state. They articulated the views put forth earlier and emphasized that under no circumstances should this agreement be disclosed publically. In reply, the appellant categorically stated that he was not keen to seek information pertaining to commercial confidence, trade secrets and intellectual property. However, being a public sector entity operating from public land, largely funded by the public exchequer, it owes its responsibility in the larger interest of the public to disclose broader contours of the agreement and every citizen of India has a right to know about this information. The respondent nevertheless, submitted that they would like to provide certain additional details in writing by today evening for further action by the Commission. They were advised to endorse a copy to the appellant also in compliance of the spirit enshrined behind the RTI Act, 2005.
The respondent submitted a written response vide their email dated 19.12.2016, re-iterating their submissions made earlier in the day during the course of hearing. It was articulated that the information sought was exempted from disclosure as per section 8 (1) (a) of the RTI Act, 2005, since the information sought may prejudicially affect the economic interests of state. It was explained that AI-SATS JV was a commercial venture of state in the area of ground handling where there are other private/ foreign players active and waiting to enter the field i.e., it is a competitive field with several players. Therefore, it was argued that disclosure of this agreement which forms basis of JV would definitely harm competitive interest of the state especially when there was no such disclosure obligation on other private/ foreign players. The respondent submitted that relations with a foreign state would be prejudiced as SATS was ultimately owned by Singapore Government and disclosure of such crucial agreement which forms the very basis of formulation of JV would harm business interest of Singapore Government. It was re-iterated that disclosure was exempt as per section 8 (1) (d) of the RTI Act, 2005. Furthermore, the respondents claimed exemption under section 8 (1) (e) of the RTI Act, 2005 since the agreement was held by Air India in a fiduciary relationship.
Having heard both the parties at length, the Commission observes that the document sought by the appellant is a copy of the Joint Venture Agreement entered into between Air India and SATS. As admitted by the respondent, the joint venture agreement involves a stake in the ratio of 50:50 between Air India, a public company which falls within the purview of RTI Act, 2005 and SATS, a private entity which implies that both the parties have an Page 4 of 8 equal stake in the joint venture and the document sought for shall ordinarily be in custody of both respondent, Air India and SATS and not in the exclusive possession of the third party. The Commission places reliance on the decision of the Hon'ble High Court of Madras in V.V. Mineral v. Director of Geology and Mining, Writ Petition (MD) No.5427/2007 dated 25/06/2007 wherein the following was held:
"11.Therefore, the principal contention that a right accrues to the petitioner to object may be correct in the context if a document is exclusively submitted by any person to the Government authorities such as property statements, income tax returns etc., but in a case of lease deeds and transport permits which emanate from the statutory authorities and where the petitioner cannot be said to be in exclusive possession, he cannot have a right to object to its being divulged as a third party. The lease deeds pertaining to minerals as well as transport permits are not documents prepared or to be kept by a prospecting mine operator but prospecting a mine or mineral is a privilege conferred by the State to the individuals, who accepts the norms prescribed under Mines and Minerals Act 1957 and the rules framed thereunder.
12. In the present case, when the third respondent as an Information Officer, ordering notice to the petitioner and taking their objection and refusing to furnish the documents sought for by a citizen is clearly beyond the scope of the RTI Act. If the information is available with the State and such information is in exclusive custody of the State, the question of seeking any opinion from the third party on such issues may not arise especially, when they are public documents. By disclosure of such information, no privilege or business interests of the petitioner are affected. On the other hand, such a disclosure may help any party to act upon those documents and take appropriate steps."
The aforesaid observation of the Hon'ble High Court of Madras was upheld in the decision of the Hon'ble High Court of Nagpur in Sunflag Iron & Steel Company Ltd. V. State Information Commission Writ Petition No. 863/ 2012 dated 14.11.2014 wherein, the following was held:
"10. After hearing the learned advocates for the respective parties and considering the judgments referred above, in my view, it cannot be said that in each and every case the notice under Section 19(4) of the Act of 2005 is required to be issued to third party and hearing is to be afforded to the third party before any directions for supplying the information are given. The Division Bench of Delhi High Court has considered the scope of Section 11(1) of the Act of 2005 and has laid down that the notice is required to be given to third party in case information prima facie is considered as confidential and if it affects the rights of privacy of the third party.
12. If the impugned order is examined in the light of the above referred judgments, it has to be held that the directions given by the Commission Page 5 of 8 to provide the information as sought vide Item no.5 of the application given by the respondent no.1 cannot be said to be an information which can be considered as confidential and in the exclusive possession of the petitioner, it being a Memorandum of Understanding to which the Government of Maharashtra is a party. However, the information sought by the respondent no.4 vide Item No.4 of his application, cannot be provided to the respondent no.4 without hearing the petitioner and considering its objections. The information sought by the respondent no.4 vide Item no.4 of his application, does not specify the documents in respect of which the information is sought and the directions to provide the information on such vague request may prejudice the petitioner.
13. The reliance placed on behalf of the petitioner on the judgment given in the case of R.K. Jain V/s. Union of India & Anr. (cited supra) is misdirected inasmuch as in this case, the information sought related to the annual confidential reports of the third party which objected to the providing of the information. In the judgment given in the case of Surupsingh Hrya Naik V/s. State of Maharashtra & Ors. (cited supra) again the issue was about giving of information relating to the hospital records. In the judgment given in the case of SKIL Infrastructure Private Limited & Anr. V/s. State Information Commissioner & Ors. (cited supra) the issue about supplying the information which was not exclusively in the custody of the third party and which related to the transactions of the State Government, did not fall for consideration.
The judgments relied on behalf of the petitioner do not assist the petitioner. As far as the facts of the present case are concerned, information sought by the respondent no.4 vide item no.5 of his application is concerning the Memorandum of Understanding to which the Government of Maharashtra is party and it cannot be said that the information is exclusively related to the petitioner. The directions issued by the Commission to provide the information to the respondent no.4 sought vide Item no.5 of his application cannot be faulted with."
The Commission finds that the decision of the Hon'ble High Court of Delhi in Jamia Millia Islamia v. Ikramuddin WP (C) No. 5677/2011 dated 22.11.2011, quoted by the appellant, is pertinent in this matter wherein it was observed that:
"The act of entering into an agreement with any other person/entity by a public authority would be a public activity, and as it would involve giving or taking of consideration, which would entail involvement of public funds, the agreement would also involve public interest. Every citizen is entitled to know on what terms the Agreement/settlement has been reached by the petitioner public authority with any other entity or individual."Page 6 of 8
The RTI Act, 2005 was enacted to ensure greater and effective access of information and progressive and meaningful participation of all concerned. . The preamble also inter alia states "... democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed." The Commission finds that every action of the government must be actuated in public interest and for larger public good. When a public authority is largely funded by the government, a citizen has every right to know about the investments carried out by the public entity in the larger interest of the public.
In Mardia Chemical Limited v. Union of India MANU/SC/0323/2004 :
(2004) 4 SCC 311, wherein the Hon'ble Supreme Court of India while considering the validity of SARFAESI Act and recovery of non-performing assets by banks and financial institutions in India, had held as under :
".............it may be observed that though the transaction may have a character of a private contract yet the question of great importance behind such transactions as a whole having far reaching effect on the economy of the country cannot be ignored, purely restricting it to individual transactions more particularly when financing is through banks and financial institutions utilizing the money of the people in general namely, the depositors in the banks and public money at the disposal of the financial institutions. Therefore, wherever public interest to such a large extent is involved and it may become necessary to achieve an object which serves the public purposes, individual rights may have to give way. Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country..........."
Moreover, the appellant in page 3 of submissions in the second appeal dated 29.02.2016, had submitted that it would be sufficient, if he was supplied with a copy of MOU signed between Air India and SATS deleting portion on
(a) Commercial confidence (b) Trade secrets and (c) Intellectual property. As per section 10 of the RTI Act, 2005, the CPIO has the powers to direct access to any part of the record which does not contain any information which is exempt from disclosure under the act and which can be reasonably be severed from any part that contains exempt information.
At this juncture, the decision of the Commission in Venkatesh Nayak v. Shri P.K. Yadav, CPIO, NTPC, New Delhi CIC/CC/A/2014/002901-YA dated 15.02.2016 can also be referred to. The aforesaid decision related to a query pertaining to disclosure of a joint venture agreement between NTPC and Ceylon Electricity Board. The Commission directed for furnishing information on appellant's query in public interest by providing consolidated information in form of project synopsis by the respondent.
Page 7 of 8DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission instructs the respondent to furnish information in public interest in the form of a synopsis to the appellant with a copy to the Commission defining the broad contours of the agreement, as every citizen has a right to know the fundamental principles governing the Joint Venture Agreement and in what way is it benefitting the lives of the travelling public. This information should be furnished, within a period of 15 days from the date of receipt of this order.
The appeal stands disposed with the above direction.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Copies to:
1- Secretary, M/o Civil Aviation, Rajiv Gandhi Bhawan, Safdarjung Airport, New Delhi.
2- CMD, Air India, Airlines House, 113, Gurudwara Rakabganj Road, New Delhi-110001.Page 8 of 8