Central Information Commission
Vikram Gulati vs National Highways Authority Of India ... on 21 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/NHAIN/A/2022/655866 +
CIC/NHAIN/A/2022/660556
Vikram Gulati .....अपीलकता /Appellant
VERSUS
बनाम
CPIO,
National Highway Authorities of
India, PIU-Shimla, RTI Cell, House
No. 1, Rishikesh Sadan, Shanti Kutia,
Chakkar, Shimla-171005, H.P. .... ितवादीगण /Respondent
Date of Hearing : 18/07/2023
Date of Decision : 18/07/2023
INFORMATION COMMISSIONER : Saroj Punhani
Note - The above-mentioned Appeals have been clubbed together for decision
as these are based on similar RTI Applications.
Relevant facts emerging from appeals:
RTI applications filed on : 23/09/2022 & 17/10/2022
CPIO replied on : 12/10/2022 & 31/10/2022
First appeals filed on : 13/10/2022 & 01/11/2022
First Appellate Authority orders : 14/10/2022 & 10/11/2022
2nd Appeals/Complaint dated : NIL
1
CIC/NHAIN/A/2022/655866
Information sought:
The Appellant filed an RTI application dated 23.09.2022 seeking the following information:
"1) Documents showing the total amount payable to the EPC Contractor.
2) Documents showing the actual amount paid to the EPC Contractor.
3) Documents showing item-wise details of amounts deducted from the amount payable to the EPC Contractor.
4) Documents showing details of any disputed amounts payable and reasons for the dispute.
5) Documents showing who must bear the cost of these slope stabilization measures."
The CPIO furnished a pointwise reply to the appellant on 12.10.2022 stating as under:
"1. Total amount payable to EPC Contractor is as per Contract Agreement which is available on NHAI website i.e., http://www.nhai.gov.in.
2. Work in progress.
3. NIL.
4. No dispute as on date.
5. For protection, cost or work retaining wall and breast wall is paid by NHAI to EPC Contractor as per Contract Agreement."
Being dissatisfied, the appellant filed a First Appeal dated 13.10.2022. FAA's order, dated 14.10.2022, upheld the reply of the CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal on the following grounds -
"...Documents showing amount paid to the EPC contractor have not been given. It may be noted that the "Letter of Award" for this contract was issued by NHAI on 30/3/2015. Start date of this project was 21/9/2015 with the target date of completion as 21/3/2018. Further in response to information sought under the RTI Act, 2005 it was advised by NHAI vide their letter dated 20/1/2020 that the likely date of completion is 31/3/2020 (except some locations).2
This award was for an amount of Rs 748.77 crores and substantial payments would have been made by now.
Even the toll collection on this stretch of the road has started about a year back.
It is also pertinent to note that Article 19 of the Contract Agreement which is on "Payments" details various types of payments - 'Advance Payments', 'Stage Payments', 'Payment for Maintenance' and 'Final Payment'.
NHAI may please be directed to give copies of the documents showing the details of the payments made to the contractor till date.
2) Vide S.No. 5 of the application under the RTI Act, 2005 documents showing who has to bear the cost of these slope stabilization measures were requested for.
In the reply of NHAI dated 12/10/2022 though no documents have been provided, it is stated " For protection, cost of work retaining wall & breast wall is paid by NHAI to EPC Contractor as per Contact Agreement."
The Contract Agreement is in two volumes. Volume 1 consists of 324 pages and Volume 2 consists of 277 pages.
As part of the first appeal, the relevant clause of the Contract Agreement was requested for, which has not been provided.
NHAI may kindly be directed to provide the relevant clause of the Contract Agreement as it is still not clear as to who would bear this cost. Would NHAI pay these costs to the Contractor as part of the award amount of Rs 748.77 crores or is it over and above the award amount which NHAI would pay additionally to the contractor.
3) It is also requested that appropriate action should be taken against the PIO and the First Appellate Authority for not giving the information on the amount paid to the contractor even though the contract was awarded more than 7 years back."
3CIC/NHAIN/A/2022/660556 Information sought:
The Appellant filed an RTI application dated 17.10.2022 seeking information with respect to the Contract Agreement dated April, 2015 between M/s NHAI and M/s G. R. Infra projects Limited for four laning of Parwanoo-Solan section of NH22 (now NH5) on EPC mode under NHDP Phase -III, including inter alia;
"1) Provisional Certificate along with the Punch List issued by NHAI as per Clause 12.2 of the Contract Agreement.
2) Completion Certificate issued by NHAI as per Clause 12.4 of the Contract Agreement.
3) Documents showing the amount of Advance Payment paid by NHAI as per Clause 19.2 of the Contract Agreement.
4) Documents showing amounts of all Stage Payment for Works paid by NHAI as per Clause 19.5 of the Contract Agreement.
5) Documents showing amounts of all Payment for Maintenance paid by NHAI as per Clauses 19.7 and 19.16 of the Contract Agreement.
6) Documents showing amounts of all Payment of Damages paid by NHAI as per Clause 19.8 of the Contract Agreement.
7) Documents showing amounts of all Price Adjustment for Maintenance paid by NHAI as per Clause 19.12 of the Contract Agreement.
8) Final Payment Statement submitted to NHAI as per Clause 19.13 of the Contract Agreement.
9) Final Payment Certificate issued by NHAI as per Clause 19.15 of the Contract Agreement.
10) Documents showing amount of Bonus for early completion paid by NHAI as per Clause 19.20 of the Contract Agreement."4
The CPIO furnished a pointwise reply to the appellant on 31.10.2022 stating as under:
"1. Please deposit Rs. 36/- through IPO as a photocopy charge for 18 pages (A4 Size).
2. Not yet issued.
3. to 7. This information cannot be supplied as per Section 8 (d) of the RTI Act, 2005.
8. & 9. Not yet issued.
10. NA."
Being dissatisfied, the appellant filed a First Appeal dated 01.11.2022. FAA's order, dated 10.11.2022, upheld the reply of the CPIO.
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 intra-video conference. Respondent: Anand Kumar, PD/PIU & CPIO present through video -conference.
The CPIO at the outset apprised the bench that a point wise reply has been provided to the Appellant earlier and further, upon receipt of hearing notice, a revised point wise reply against each case/ issue has also been furnished to the Appellant on 15.07.2023.
To a query from the Commission, the Appellant affirmed the receipt of recent replies. However, he expressed his dissatisfaction with the fact that interim payment records supplied by the CPIO vide revised replies do not adequately suffice the information sought for. He further stated that the genesis of instant matters was non-completion of the averred project i.e. four laning of Parwanoo- Solan section of NH22 (now NH5) on EPC mode under NHDP Phase -III which was sanctioned/ awarded to the EPC way back in 2015. Lastly, he urged the Commission that his main concern in the matter is expeditious completion of the project so that residents of that area have access to connectivity / roads .5
In response to Appellant's contentions, the CPIO apprised the Bench that tenders for award of work for ' slope stabilization measures" have been evaluated and the process is under way for finalization. Further, the construction will start shortly and roads would soon become functional as per the expected norms. The CPIO furthermore apprised the bench that even otherwise , the details of all the projects/ tenders/ bid awards, etc. upon its completion are made public and can be easily accessed from their Website.
While summing up his arguments, the CPIO submitted that there is no intent to hide/obstruct any information from the Appellant. However, if the Appellant is still not satisfied, then he is free to visit and inspect the relevant records in their office with the prior intimation. He also volunteered to upload a copy of his revised replies on the CIC's website for the purpose of record.
Decision:
The Commission upon a perusal of records and after hearing submissions of both the parties at length observes that the main premise of the instant matter is not as much as about seeking specific access to information per se as it is about redressal of Appellant's grievance regarding alleged deficiency in services on the part of Respondent's organization on delay in non-completion of the averred four laning project and seeking clarifications from the CPIO in this regard.
From the standpoint of RTI Act, the replies of the CPIO appear to be as per the provisions of RTI Act, merits of which cannot be called into question.
For better understanding of the mandate of RTI Act, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. In this regard, his attention is also drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors. [CIVIL APPEAL NO.6454 of 2011] wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information 6 which require drawing of inferences and/or making of assumptions. 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." (Emphasis Supplied) As far as jurisdiction of Commission is concerned, a reference may be had of a judgment of the Hon'ble High Court of Delhi in the matter of Hansi Rawat and Anr. v. Punjab National Bank and Ors. (LPA No.785/2012) dated 11.01.2013 wherein it has been 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 fora. 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."(Emphasis Supplied).
The aforesaid rationale finds resonance in another judgment of the Hon'ble Delhi High Court in the matter of Govt. of NCT of Delhi vs. Rajender Prasad (W.P.[C] 10676/2016) dated 30.11.2017 wherein it was 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."
While, the Apex Court in the matter of Union of India vs Namit Sharma (Review Petition [C] No.2309 of 2012) dated 03.09.2013 observed as under:
"20. ...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 7 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...." (Emphasis Supplied) Nonetheless, by taking a liberal view in the matter and in furtherance of hearing proceedings, the CPIO is directed to provide a revised response categorically stating the facts as stated during the hearing with an offer of opportunity of inspection of the relevant and available records related to impugned RTI Applications to the Appellant , if the latter so desires and visit the office on a mutually decided date & time. The said direction should be complied with by the CPIO within 15 days from the date of receipt of this order and a compliance report to this effect should be sent to the Commission by the CPIO incorporating the details of the records provided for the inspection and copies thereof, immediately thereafter.
Lastly, by empathizing with the concern of Appellant, the Commission hereby advises him to pursue his grievance through appropriate administrative mechanism.
The appeals are 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 / 8