Central Information Commission
Harinder Dhingra vs Telecom Regulatory Authority Of India on 20 September, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.- CIC/DOTEL/A/2017/605912
Date of Hearing:- 12.09.2018
Adjunct Order Dated 19.09.2018
Hearing:
1. The instant matter is listed today for further hearing.
2. Both the parties participated in the hearing personally. Ms. Padma Iyer
Kaul (DDG, LFA) and Mr. Saurabh Deshmukh (ADG, LFA-III) represented the
respondent. The written submissions are taken on record.
3. The appellant stated that his query is limited to furnishing of copy of the demand/recovery notice(s) sent to the telecom companies and copy of reply(s) received from each of them. He informed the Commission that the respondent in their written submission (affidavit) before the Hon'ble Supreme Court of India had admitted loss of revenue to the tune of Rs. 29,000/- crore. In addition, he stated that the disclosure is in larger public interest, therefore, the respondent should supply him copy of the recovery notice and the reply sent by these telecom companies. Further, he stated that he has written numerous letters to the Government for the recovery of huge public exchequer money but no action has been initiated. He has since approached the Hon'ble Punjab and Haryana High Court through a Public Interest Litigation, which has been accepted and notice of motion has been issued in CWP no. 15385 of 2016.
4. The respondent reiterated as follows:-
"(i) Paras of CAG Report No.4 had been replied to CAG.
Matter is under consideration in PAC now. Any information of the demand cum show cause notice may impact on the hearing before PAC thereby attracting Parliamentary Privilege.
1(ii) The revised assessment based on Special Audit report (2009-09 to 2010-11) and on representations from 2006- 07 to 2009-10 is presently under process at Departmental level. Hence they claim exemption under section 8(1)(h) of the RTI Act.
(iii) The Audited Gross Revenue (License Fee is a certain % of the AGR). This matter is pending before the Hon'ble Supreme court of India. All the demands are subject to the outcome of the decision of the Hon'ble Supreme court of India.
(iv) The information was denied to the appellant under section 8 (1)(h) of the RTI Act, 2005.
(v) The respondent has submitted before Hon'ble High Court the details of demand raised already against the vendors but this is not the final demand figure. It keeps on changing depending upon the interest rate."
5. The respondent further submitted as follows:-
"Grounds for rejection of information sought by the appellant:-
1. Paras of CAG Report No. 4 of 2016 had been replied to CAG. The matter is now under the consideration of PAC.
As per the Office Memorandum issued by TLS cell of Lok Sabha Secretariat Dated 22.11.2011 which reads as:-
"The undersigned is directed to refer to the OM dated 14th November, 2011 of the Ministry of Communications & Information Technology (Department of Telecommunications) wherein the Ministry have sought clarification that whether the papers/documents as sought by the applicant may be considered secret/confidential as per the parliamentary procedure or can the same be disclosed to the applicant/put in the public domain.2
In this connection, it may be mentioned that proceedings of the Parliamentary Committees are governed by the Rules of Procedure and the Directions by the Speaker. Under the provisions of the relevant Rules and Directions, proceedings of the Parliamentary Committees are treated as confidential. Under Rule 275(2) evidence report and proceedings of the Committees are treated as confidential and no part of the evidence, oral or written, report or proceeding of a Committee which has not been laid on the table shall be open to inspection by anyone except under the authority of' the Speaker.
In this regard, attention may be drawn to the provisions of Section 8 of the RTI Act, 2005 which exempts certain public authorities from disclosure of certain categories of information. As far as parliament is concerned, under clause (c) of sub-section (1), there shall be no obligation to give any citizen information, disclosure of which would cause a breach of privilege of Parliament. As such, keeping in view the provisions of the said section of RTI and the rules and directions governing the proceedings of the Committees, information, the disclosure of which would cause a breach of privilege can be declined.
The Ministry of Communications and Information Technology (Department of Telecommunications) may kindly see for information and necessary action. The receipt of the OM may kindly be acknowledged."
The Report no. 4 of CAG of 2016 is pending before Public Accounts Committee and information sought forms the part of PAC evidence and proceedings. There is no obligation to provide the information till the report of Committee is laid on the table and the same can be denied under section 8(1)(c) of the RTI Act, 2005.
3The above view has also been upheld by Hon. Commission in its previous decisions of Mr. Subhash Chandra Agrawal vs. Ministry of Communications and Mr. Rajeev Chandrashekhar vs. Ministry of Communications. Therefore, it is prayed that exemption under section 8(1)(c) of RTI Act 2005 may be granted.
The audited revenue figures in the profit and loss accounts submitted by the Telecom Companies and that are taken as base figure for verifying the AGR to calculate the revenue share payable by the licensee contains information of a third party that is commercially sensitive in nature. A Show cause cum demand notice is being raised if there is any shortfall calculated on the basis of this information, The Hon. Commission in its earlier decision in appeal no. CIC/BS/A/2015/001490/11759 (Mr. Sreedhar Rao N G vs. Department of Income Tax) in a case akin to this has held that information relating to income tax matters of an assessee cannot be disclosed to third party unless the CPIO is satisfied that larger public interest justified the disclosure of such information. It is also respectfully brought to the notice of Hon. Commission that department has submitted all its demand notices in form of Action Taken Notes to the CAG with all the relevant details, who in turn have forwarded it to esteemed Public Accounts Committee for their examination. Both the Constitutional authorities are examining the report sent by DoT. The justification given by the appellant does not establish any public interest at large being served by revealing such information to appellant. Therefore, it is prayed to grant exemption under section 8(1)(d) of RTI Act, 2005.
4For the purpose of calculating the Government's revenue share, definition of the GR and AGR is set out in Clause 19.1 and 19.2 of the UASL Agreement. Many licensees did not agree with the above definition and challenged the definition of GR/AGR before the TDSAT from 2003-04 onwards. The Department has appealed against the orders of Hon'ble TDSAT before the Apex Court through Civil Appeals. These Civil Appeals are being heard by Hon'ble Apex Court. Simultaneously, some of the licensees have also filed writ petitions before various High Courts invoking the writ jurisdiction under Article 226 of the Constitution challenging the Section 4 of Indian Telegraph Act, 1885 for violation of the Article 14 and 19(1)(e) of the Constitution of India. The Writ petitions are pending at various stages. All the demands notes issued are subject to the outcome of the decision of the Apex Court. Therefore, the information sought by the appellant has not attained the stage of finalization and may change after the decision given by Hon'ble Supreme Court of India. Therefore, it would not be appropriate to part with the information when the same is under the stage of investigation/review. Thus, it is humbly prayed to allow exemption under section 8(1)(h) of RTI Act, 2005 Licenses are issued to Companies and License agreement is signed between TSP and Department on the basis of mutual trust an-d confidence. The appellant is neither a licensee nor a licensor, and will constitute breach of probity of contract if the sought information is provided. However, as per directions issued by the Hon. Commission as per Adjunct order dated 09.05.2018, the Department has served notices to concerned third parties under section 11 of RTI Act to file their written submission 5 in the matter that whether the information can be disclosed to the appellant after redacting the information held by them in fiduciary capacity from the documents/notices, reply for which is awaited thereof. It is prayed further that in this case the information is being denied under various other clauses as detailed in above i.e., under Sections 8(1)(c), 8(1)(d) and 8(1)(h) of the RTI Act."
6. The respondent submitted the replies of the third parties (Telecom Service Providers) in response to the notices sent by the DoT under Section 11 of the RTI Act on 03.07.2018 as follows:-
"Bharti Airtel Ltd.
"In light of the submission made herein above, it is again requested to not share the information as sought by the applicant due to the following reasons:-
1. There is no notice of recovery which is enforceable under the law against the Company.
2. Sharing such information is against the very manifesto of the RTI Act as the Company is not covered under the same.
3. These information are not related to any public company/authority etc. covered under the RTI Act.
4. The matter is sub judice and pending adjudication before the Hon'ble Supreme Court and other High Courts and thus the constituents of these demands (i.e. the information desired) are not final and subject matter of interpretation by the judiciary.
5. The amount calculated under these demands is also not free from defects.
Thus, seeking of such information of specific Companies at a stage where the issues are pending adjudication before the Hon'ble Supreme Court gives a sense of malafide intent wherein 6 this information may be misused or may be used to the competitive disadvantage of the Company or for personal gains. The information sought by the applicant i.e. the notices issued by the Government and the replies submitted by the Company are strictly confidential and cannot be divulged to third parties. The above information also contains certain disclosures made by the Company which are confidential and private and if revealed can be misconstrued by the external parties. Further under section 8(1) (d) of the RTI Act, the information sought for is commercially confidential in nature and its disclosure can harm /compromise the competitive position of the TSP and hence the same cannot be shared under the provisions of the RTI Act." Reliance Communications Ltd.
"The information sought by the applicant is commercially sensitive information. Further, the correspondence between the licensor and licensee is confidential. Hence, such commercial sensitive/confidential information/records being exempted under the Act cannot be shared with the 3rd party."
Vodafone Idea Ltd.
"The information sought by the appellant should not be supplied on account of the following reasons:-
(i)Our Company is not a Public Authority as defined u/s 2(h) of the RTI Act and thus, do not fall under the ambit of RTI Act.
(ii) The Demand Notices and Replies to the said Demand Notices are handled by DoT in its fiduciary capacity being the Licensor and as such, the said information is exempted u/s 8(1)(e) of RTI Act.
(iii)The said information is already being examined by Parliamentary Affairs Committee and as such, the said information is also exempted u/s 8(1)(c) of RTI Act.
(iv)The demand notices/ replies contains personal facts/ materials/ particulars of the Company, arising out of the 7 Contract with the Licensor/ DoT, and is confidential in nature.
Such information, if made public, shall gravely prejudice the interests of the Company as such has been made exempted u/s 8(1)(d) and 8(1)(j) of RTI Act.
(v) No notice of recovery has been issued by DoT, which obviously cannot be issued for the provisional demands, demands stayed by a Court of Law, demands issued subject to the outcome of pending Petition in the Courts/ Tribunal etc. The Hon'ble TDSAT vide its order dated 11.01.2018 in Petition No. 1 of 2018 also held in relation to these provisional demands that there is every likelihood of issue of revised or further demands. Wherefore, disclosure of such demands, which are provisional, not in conformity with TDSAT Judgment 23.04.2015 and are unenforceable will not serve any public interest and shall be detriment to the interest of the Company and its shareholders.
(vi) The said Demand Notices are subject matter of challenge in Court/ Tribunal, wherein, stay order has been passed and as such, the said demands are unenforceable." Discussion/observation:
7. This Commission after hearing the matter at length and perusing the documents on record is of the opinion that the demand/recovery notice(s) forms the part of the PAC evidence and proceedings. Under Rule 275(2) of the Rules of Procedure and Conduct of Business in Lok Sabha, evidence report and proceedings of the Committees are treated as confidential and no part of the evidence, oral or written, report or proceeding of a Committee which has not been laid on the table shall be open to inspection by anyone except under the authority of' the Speaker. In view of this, it is observed that there is no obligation to provide this information to the appellant till the report of Committee is laid on the table of the House. Further, it is observed that the exemption available under Section 8(1)(c) of the RTI Act, 2005 is attracted in this case.8
Decision:
8. No further intervention of the Commission is required in the matter.
9. The show-cause dated 23-01-2018 is dropped.
The appeal is disposed of. Copy of the order be given to the parties free of cost.
Radha Krishna Mathur (राधा कृ ण माथुर) मु य सूचना आयु ) Chief Information Commissioner (मु Authenticated true copy (अिभ मािणत स ािपत ित) S.C. Sharma Dy. Registrar एस.
एस सी.
सी शमा , उप-पंजीयक (011-26186535) 9