Central Information Commission
General Secretary vs Bharat Petroleum Corporation Limited ... on 17 October, 2019
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/BPCLD/A/2018/103306-BJ
General Secretary
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
Chief Manager (Business & Network Planning)
Bharat Petroleum Corporation Ltd.
State Office Delhi, Haryana, HP & UK
A - 5 & 6, Sector 1, Noida
Uttar Pradesh - 201301
... ितवादीगण /Respondent
Date of Hearing : 16.10.2019
Date of Decision : 17.10.2019
Date of RTI application 27.07.2017
CPIO's response 25.09.2017
Date of the First Appeal 13.12.2017
First Appellate Authority's response 28.12.2017
Date of diarised receipt of Appeal by the Commission 16.01.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information regarding monthly average of RTD covered by T/Ts for the transportation of MS/HSD and Branded fuels by road for the year 2016-17 (April/2016 to March/2017) of all the locations/ depots situated in Haryana State of all the three PSU Oil Companies i.e. IOCL, HPCL and BPCL.
The CPIO, vide its letter dated 25.09.2017 stated that the information sought was of commercial confidence and had no relationship to any public activity, hence denied u/s 8(1) (d) & (j) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 28.12.2017, upheld the CPIO's response.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 5
Appellant: Mr. M. C. Gupta and Mr. D. D. Agrawal through VC;
Respondent: Mr. Ravi Prakash, CPIO & Chief Manager, BPCL and Mr. P. K. Srivastava, DGM;
The Appellant reiterated the contents of the RTI application and stated that the information sought had been wrongly denied under Section 8(1) (d) and (j) of the RTI Act, 2005. He further submitted that the Oil Companies/OMCs were bound to feed the products i.e. HSD/Petrol to the petrol pumps on F.O.R. basis. For the purpose, none of the companies has its own required infrastructure i.e. Tank Trucks to feed the products to their retail outlets. The dealers have to prepare their own T/Ts to avoid dry-up their retail outlets and not to earn business profit by running/transportation of the T/Ts rather the company is taking excuses unnecessarily in providing the required information which was essential to find out the economical viability of the T/Ts. Moreover, the dealers ultimately help the company by providing the infrastructure i.e. tankers to solve the issues of F.O.R. supply and that the Respondent was wrongly and malafidely denying the information. The Appellant further contested the submissions of the Respondent stating that Section 8(1) (d) of the RTI Act, 2005, was not applicable in his case as there was no commercial confidence involved in the matter. In its reply, the Respondent re-iterated the response of the CPIO/ FAA and stated that the information sought being sensitive and confidential in nature and pertaining to their commercial and trade secrets could not be disclosed to the Appellant u/s 8 (1) (d) of the RTI Act, 2005. Hence it was emphasized that divulging such information could irreparably damage the capacity of the Public Authority to function effectively as a Commercial Entity engaged in a highly competitive business. It was further submitted that they have entered into a contract with the third party and that divulging any information relating to it would tantamount to breach of their fundamental rights. Hence, the information sought could not be provided. Moreover, they follow e-bidding system in selecting the tender process and that the complete Rule/Regulations/Conditions were made available there under. The Appellant acknowledged the said procedure being followed by the Respondent Public Authority.
The Commission was in receipt of a written submission from the Appellant dated Nil wherein while contesting the response provided by the CPIO/FAA, it was submitted that the information sought was wrongly and malafidely denied by the Respondent and that it pertained to absolute interest of dealer fraternity and that the Company should maintain transparency in its all dealings. Therefore, it was humbly prayed to the Commission to direct the Oil Company to provide the required information as sought in the RTI application.
The Commission was in receipt of a written submission from the Respondent dated 26.07.2019 wherein while reiterating the background of the case, submitted that all relevant information as per the provisions of the RTI Act, 2005, had already been provided to the Appellant. Hence, it was requested to the Commission to dispose of the Second Appeal.
Having heard both the parties and on perusal of the available records, the Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:Page 2 of 5
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
In the context of non disclosure of information under Section 8(1)(d) of the RTI Act, 2005, the decision in Naresh Trehan vs Rakesh Kumar Gupta (W.P(C) 85/2010) decided on 24.11.2014, was referred to, wherein it was held as under:
14. "....Such information would clearly disclose the pricing policy of the assessee and public disclosure of this information may clearly jeopardise the bargaining power available to the assessee since the data as to costs would be available to all agencies dealing with the assessee. It is, thus, essential that information relating to business affairs, which is considered to be confidential by an assessee must remain so, unless it is necessary in larger public interest to disclose the same. If the nature of information is such that disclosure of which may have the propensity of harming one's competitive interests, it would not be necessary to specifically show as to how disclosure of such information would, in fact, harm the competitive interest of a third party. In order to test the applicability of Section 8(1)(d) of the Act it is necessary to first and foremost determine the nature of information Page 3 of 5 and if the nature of information is confidential information relating to the affairs of a private entity that is not obliged to be placed in public domain, then it is necessary to consider whether its disclosure can possibly have an adverse effect on third parties."
The Commission however observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had held as under:
6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.Page 4 of 5
A similar view delineating the scope of the Commission's jurisdiction was also taken by the Hon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, no further intervention of the Commission is required in the matter. For redressal of his grievance, the Appellant is advised to approach an appropriate forum.
The Appeal stands disposed accordingly.
(Bimal Julka) (िबमल जु का)
(Information Commissioner) (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
(K.L. Das) (के .एल.दास)
(Dy. Registrar) (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 17.10.2019
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