Central Information Commission
Mr. Dheeraj Nair vs Department Of Telecommunications, New ... on 7 October, 2009
Central Information Commission
CIC/AD/A/2009/001113
Dated 7 October, 2009
Name of the Applicant : Mr. Dheeraj Nair,
Name of the Public Authority : Department of Telecommunications,
New Delhi.
Background
1. The Applicant filed his RTI application on 24.02.09 with the CPIO, Department of Telecommunications, Ministry of Communications and Information Technology, New Delhi requesting for information relating to License Agreement No. 842-65(1)/95-VAS dated 26.12.1995 executed between M/s J T Mobiles Ltd. (known first as M/s Bharati Mobile Ltd. and now known as M/s Bharti Airtel Ltd.) and Department of Telecommunications in respect of Punjab Cellular Mobile Telecom Circle Area:
(i) Three (3) Written Opinions dated 30 March, 2000 , 14 April, 2001 and 29 August, 2001 given by the then Learned Attorney General of India Shri. Soli J. Sorabjee to Department of Telecommunications regarding:-
(a) Compliance by M/s. JT Mobiles Ltd. of the conditions stated in the No Objection Letter dated April 18, 1996 issued by the Department of Telecommunications regarding operation of Cellular Mobile Telephone Service Punjab Circle through Evergrowth Telecom Limited, a 100% subsidiary of M/s JT Mobiles Ltd.,
(b) Payability of licence fee by M/s. JT Mobiles Ltd. for the Black Out Period from April 18, 1996 to March 10, 1998 in respect of the Punjab Cellular Licence.
(ii) Notings contained in the Files maintained by the Department of Telecommunications in the captioned matter.
2. The Appellant vide communication No. 16-1/2009-AS.III/211 dated 19.03.2009 in the form of Office Memorandum was informed by Sh. Balvinder Singh, Director, AS III that the RTI application had been transferred from Sh. Balvinder Singh, Director, AS III to Sh. A S Verma, CPIO & Director AS II under provisions of Section 6(3) of the RTI Act 2005. Subsequently, the Appellant received yet another communication of a similar nature, in the form of an Office Memorandum No. 16-1/2009-AS.III/212 dated 23.03.2009 from Sh. Balvinder Singh, Director, AS III transferring the RTI application to Sh. Shashi Mohan, CPIO & Director, AS-IV yet again under provisions of the Section 6(3) of the RTI Act 2005. However, the said RTI application was inadvertently delivered to the Appellant instead of being delivered to Sh. Shashi Mohan, CPIO & Director, AS-
IV. It is further pointed out by the Appellant that while forwarding the RTI application, copy of the letter No. 16-1/2009-AS.III/211 dated 19.03.2009 was also enclosed with the Office Memorandum dated 23.3.2009 containing noting indicating that "...the transfer of application was not acceptable as the concerned files were available with Dir (AS IV)/ADG (VAS II)."
3. The original RTI application having been returned to the Appellant inadvertently, the Appellant returned the same to Sh. Balvinder Singh vide letter dated 28.03.2009 for taking necessary and prompt action. Meanwhile the Appellant received a letter dated 30.03.2009 from Sh. Shashi Mohan, Director (AS- IV) & CPIO refusing the information on the ground that ".....no file bearing No. 842-65(1)95-VAS is available in this section hence the required information cannot be provided.."
4. Being aggrieved at the response, the Appellant wrote a letter dated 09.04.2009 addressed to Sh. Shashi Mohan, CPIO & Director (AS-IV) apprising the latter of such facts which had caused the grievance as also mentioning the noting of Sh. A S Verma, as mentioned hereinabove in the letter No. 16-1/2009-AS.III/211 dated 19.03.2009 which substantiated the fact that the file containing the desired information was available with the Director (AS IV). The Appellant also pointed out in the same letter the possibility that the file available with the Dir. (AS IV)'s department may be numbered as 842-65(A)/95-VAS instead of 842- 65(I)/95-VAS as provided by the Appellant. While thus admitting a possible typographical error, the Appellant reiterated his request urging the CPIO to honour the object of the Act and provide the information and/or transfer the application to the concerned authority/section possessing the file containing the desired information. On not receiving any reply from the CPIO, the Appellant was compelled to file a First Appeal on 20.04.09 requesting for the information while reiterating every relevant detail from the RTI application to the latest document being the letter dated 09.04.2009 sent by the Appellant. The Appellant in his First Appeal contended that the unrelenting conduct of the CPIO was illegal, arbitrary, misconceived and vitiated by non-application of mind. The Appellant also alleged that the CPIO had violated provisions of Section 7(1) as also Section 6(3) of the RTI Act 2005.
5. Subsequent to this, the Appellant received a copy of letter No. 800-33/2009- VAS-III/2 dated 16.04.2009 issued by Sh. M K Khatri, Assistant Director (VAS- III) addressed to Sh. Shashi Mohan, Director (AS-IV) & CPIO stating therein that the concerned files containing the information sought by the Appellant had been transferred to the Director AS-IV on September 8,2008. Hence, the Appellant submitted a supplementary document dated 25.04.2009 alongwith the First Appeal already filed, pointing out the aforementioned letter dated 16.04.2009 and contending that the decision of the CPIO was wholly incorrect, unjustifiable and untenable.
6. The First Appellate Authority & DDG (AS-II), Sh. P K Mittal sent a detailed response dated 15.05.09 rejecting the Appeal and upholding the decision of the CPIO. The First Appellate Authority pointed out that the Appellant had specified the dates of the three Opinions given by the then Ld. Attorney General in his First Appeal and subsequent communications but not in his RTI application. The Appellate Authority while dismissing the Appeal justified the act of the CPIO in passing the impugned order dated 30.03.2009 stating that the file bearing the number as was sought by the Appellant was not available with the CPIO, without mentioning the specific CPIO and/or the Department/Division. It was furthermore stated by the Appellate Authority, Sh. P K Mittal that while going through the record of the files available under Director (AS IV), it was observed that the File No. 842-65(A)/95-VAS, dated December 26, 1995 contained the License Agreement executed between M/s J T Mobiles Ltd. and Department of Telecommunications in respect of Punjab Cellular Mobile Telecom Circle Area and that it did not contain any opinions or notings as sought by the Appellant. He further averred that the required information was available in the file marked as SECRET, disclosure whereof was exempt vide clause 8(2) of the Act. The Appellate Authority in his order further reasoned that the information as sought by the Appellant were part of Cabinet papers, disclosure thereof was exempt under Section 8 (1) (i) of the RTI Act 2005. The Respondent also objected to the information being sought by M/s J Sagar Associates which is a company and hence not entitled to information under the RTI Act 2005 and also as per Guidelines issued by Ministry of Personnel & Training (Govt. of India) vide letter number 1/4/2008-IR dated 25.04.2008. It was further contended by the Respondent Public Authority that the Applicant as an associate of M/s J Sagar Associates, represents Bharati Mobile Ltd. in the Delhi High Court in a pending case, thus rejecting the appeal since the matter was sub judice and could affect the interests of the Union of India. Being aggrieved with the reply of the First Appellate Authority, the Appellant filed a Second Appeal before the CIC on 02.08.09 reiterating his request for the information.
7. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing for 24 September, 2009.
8. Mr. Shashi Mohan, Director (AS-IV) & CPIO and Mr. Balvinder Singh, Director AS III represented the Public Authority.
9. The Applicant's representatives, Mr. Amit Sibal and Mr. Harsh Kaushik, Advocates were present during the hearing.
10. During the hearing, the Appellant addressed arguments at length reiterating each of his contentions from the Appeal and placing reliance on various decisions of the CIC as also of the High Court to substantiate his arguments. Among the various arguments addressed by the Appellant, the first one related to his grievance upon non-transfer of the RTI application by the Appellate Authority while passing the impugned order denying information on the ground of non availability of the relevant file. The Appellant strongly contended that by not transferring the RTI application, at the initial stage, well beyond the stipulated period of 5 days, the Respondent Public Authority had expressly violated the provisions of the Section 6(3) of the RTI Act 2005. Secondly, the Appellant reiterated the contradiction in the arguments of the Respondent Public Authority evident from the noting on the letter dated 19.03.2009 [by Sh. A S Verma], contents of the letter dated 30.03.2009 [issued by Mr. Shashi Mohan] and the letter dated 16.04.2009 [issued by Mr. M K Khatri]. While the handwritten noting in the letter dated 19.03.2009 indicated that the relevant file was available with the Dir (AS IV)/ADG (VAS II), the letter dated 30.03.2009 by Sh. Shashi Mohan, Director (AS-IV) & CPIO indicated that no such file was available in the said section. Contrarily, the letter dated 16.04.2009 from Mr. M K Khatri, Assistant Director (VAS-III) addressed to Sh. Shashi Mohan, Director (AS-IV) & CPIO pointed out that the concerned files containing the information sought by the Appellant had been transferred to the Director AS-IV on September 8,2008. In the light of such contradictory stance of the Respondent Public Authority, in its different correspondences, the Appellant contended that the Appellate Authority's order was factually incorrect and also misleading. The Appellant asserted that it is evident from the letters received by him that there is not just one relevant file but more than one and that the file bearing No. 842-65(1)95-VAS is indeed available as is evident from the statement ".....no file bearing No. 842-65(1)95-VAS is available in this section hence the required information cannot be provided.."
11. Furthermore, the Appellant emphasized that the impugned order of the Appellate Authority, Sh. P K Mittal DDG (AS II) dismissing the Appeal did not deal with the subject matter, information whereof had been sought and instead focused on the matter of the whereabouts of a file. As per the contentions of the Appellant, the Appellate Authority furthermore violated provisions of the Section 7(8) of the RTI Act 2005 having failed to provide adequate reasons for rejection of the Appeal or even furnish the period within which the appeal against such rejection may be preferred.
12. The Appellant's Counsel argued that the Respondent's contention that the information was exempt under Official Secrets' Act, 1923 is also invalid because information sought by the Appellant does not pertain to any espionage, defence, arsenal, naval, military or air force related data. The Appellant sought information about some specific aspects of three legal opinions, given by the then Learned Attorney General of India, with respect to a Commercial agreement, in a particular file and some file notings in this regard. Hence, as per the averments of the Appellant, the provisions of the Official Secrets Act, 1923 were not at all applicable in the instant case.
13. It is further contended by the Appellant that while other officers in the DOT maintained that the files containing the requisite information were in possession of the CPIO, the Appellate Authority rejected the application on the ground that the file was not available in the Section. This was despite the Appellant bringing it to the attention of the Respondent vide letter dated 09.04.2009 that there may have been an inadvertent typographical error on the part of the Appellant of writing 842-65(I)/95-VAS instead of the correct file no. 842-65(A)/95-VAS. Thus the Appellant pleaded that he could avail of only one opportunity to appeal as against two in a normal scenario due to such misconceived conduct of the CPIO. Apart from a catena of CIC decisions, the Appellant has also placed reliance on the judgment in the case of Bhagat Singh versus CIC & Ors. passed by the Delhi High Court while contending that access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception.
14. The Respondent contended that disclosure of information is not in public interest and that the file containing the desired information is marked 'Secret' since it contains a cabinet note on the subject. He produced the file before the Commission and drew the attention of the Commissioner to the said Cabinet note. It was maintained by the Respondent that the information cannot be disclosed also because the dispute about whether M/s Bharti Mobile Ltd is liable to pay the committed license fee for a period of 693 days or not has been referred to the Delhi High Court and is sub judice. Refusal of information to the Appellant, as per the submission of the Respondent, was also because the information is being sought by the Applicant who is representing M/s Bharti Mobile Ltd, the Company in turn being represented by the law firm M/s J. Sagar Associates and not as a citizen of India.
15. The hearing concluded on 24.09.09 with the Commission reserving its decision and giving clear oral directions and an opportunity to the Respondent Public Authority to submit their arguments in written form in support of their contention that the information sought cannot be disclosed as it is not related to any public activity or interest, without raising new grounds in their submission latest by 12 p.m. of 30th September, 2009 with a copy marked to the Appellant to submit his rebuttal to the same, if any.
16. In his rejoinder dated 29.9.09 the DDG (AS-II) & Appellate Authority of the Respondent Public Authority reiterated his earlier contention that the information was denied due to the fact that no public interest is involved in disclosing the information sought. He further stated that the information in fact is part of commercial confidence between the DOT and the Attorney General of India, Trade Secret or Intellectual property, the disclosure of which apart from being exempt under Section 8 (1) (d) of the RTI Act 2005 would also harm the competitive position of the DOT and may cause a revenue loss of Rs. 491 crores in the Court case filed by M/s Bharti Mobile Ltd. seeking the setting aside of the award pronounced by the Sole Arbitrator. The Company disputing that they were not liable to pay the committed license fee had filed an application invoking Section 34 of the Arbitration & Conciliation Act titled as Bharti Mobile Ltd. V/s Department of Telecommunications (DOT) with regard to Cellular Mobile Telephone Service (CMTS) License of Punjab Telecom Service Area. The Respondent maintained that the disclosure of such information is exempt under Section 8(1) (e) of the RTI Act, 2005 since the opinions of the Attorney General of India available with DOT is held in a fiduciary relationship with the then Attorney General of India. The gist/background of the case provided by the Respondent is as follows:
The Appellant, Mr. Dheeraj Nair of M/s J. Sagar Associates is representing M/s Bharti Mobile Ltd in the court case mentioned hereinabove pending in the High Court of Delhi. The Company has been disputing that they were not liable to pay the committed license fee amounting to Rs. 491 crores for a period of 693 days. The matter whether the Company has fulfilled the conditions laid down by DOT in the letter of 18.4.96 of No Objection to operate the Cellular Services through 100% subsidiary of M/s J T Mobiles Ltd. was referred to a Sole Arbitrator, Justice Jagannath Rao in accordance with a Cabinet decision taken on 18.9.2001. The Cabinet, however, also approved the restoration of the Punjab Telecom Service License and the simultaneous migration to the NTP regime 1999, subject to fulfillment of conditions of the package. Accordingly an offer was given to M/s Bharti Mobile Ltd for restoration of its CMTS license for Punjab Telecom Service area on 19.9.2001 and the Company paid approximately Rs. 491 crores as outstanding dues and accepted all the conditions of the said offer vide its letter dated 20.9.2001. Thereafter the license was restored.
The Sole Arbitrator announced his decision on 20.12.2002 holding that as per his findings on various issues, the claim for refund of the amount of license fees and interest paid by the claimant to the Department is liable to be dismissed, he added that if the Telecom Dispute Settlement and Appellate Tribunal or in any further appeal /further proceedings, the claimant is finally held not liable to pay the interest for the 52 days, the Department shall refund the same. It will be for that Authority which will finally decide the question whether Claimant is also entitled to any interest on that sum from the Department. M/s Bharti Mobile Ltd. then filed an application in Delhi High Court against this award pronounced by the Sole Arbitrator.
The Respondent highlighted the fact that the offer for restoration of the CMTS license for Punjab stated that the Award of the Arbitrator will be binding on both parties.
17. The Respondent in his rejoinder, once again averred that the information has been sought by M/s Bharati Mobile limited which is a company and hence not covered under the scope of RTI Act, 2005.
18. It is observed by the Commission from the submission of the Appellant that the Respondent, despite his undertaking before the Commission that he would not do so, as per specific oral directives from the Commissioner, has raised fresh grounds for appeal in his rejoinder, while stating that information sought cannot be disclosed under Sections 8(1)(d) and 8(1)(e) of the RTI Act, 2005 which were not taken up earlier either by the CPIO or by the Appellate Authority, in their respective Orders dated 30.03.2009 and 15.05.2009 or even during the hearing on 24th September, 2009. Resultantly, the Appellant in his submissions/rebuttal dated 01.10.2009 sought that the fresh arguments seeking exemption under Section 8 (1) (d) and Section 8 (1) (e) of the RTI Act 2005 be expunged being clear violation of the Section 7(8) read with Section 19 (1) and Section 19 (3) of the RTI Act 2005. It has been further contended by the Appellant that the grounds for rejection of an RTI application should be stated only by the CPIO and no fresh grounds can be added or raised at a later stage by even the Appellate Authority because that would mean fresh adjudication of the RTI application without affording the essential right to appeal to the Appellant. This is a violation of principles of natural justice and also contrary to settled law of the land as envisaged in the judgment of Mohinder Singh Gill vs Chief Election Commissioner [(1978)1 SCC 405] debarring any public authority from changing their case by subsequent orders or affidavits. Hence it is a clear violation of express directions of the Commission and on grounds of sheer non adherence of order/s of the Commission itself, the said additional grounds are struck down as bad, illegal and contemptuous in nature and hence non maintainable. The Appellant has also contended that the written submissions dated 29.09.09 of the Respondents have been prepared and signed by one Mr. P K Mittal who was not even present at the hearing before the CIC. It is furthermore noted that despite specific direction of the Commission on the date of hearing i.e. on 24.09.09, the Respondent Public Authority has chosen not to supply a copy of its submissions dated 29.09.2009 to the Appellant. In fact the representative of the Appellant who had come to submit their submissions accidentally discovered to his surprise that the Respondent Public Authority had filed its submissions which resulted in delay and another round of rebuttal to be filed by the Appellant. This kind of conduct on the part of a Public Authority is neither expected nor can be held to be in good taste. In fact it reflects the scant regard of the Respondent Public Authority towards the law of the land and leaves very little to imagination as to the functioning and adherence to law in their regular activities given that even specific directions of the Commission are not complied.
19. The Commission noted from the CPIO & Director (AS-IV), Sh. Shashi Mohan's, reply that he had refused the information on the ground that no file with the 'number' given by the Appellant, is 'available' in his Section, thereby indicating that such a file is available in another Section; in which case he was obligated to transfer the application to the concerned Section instead of refusing the same for non availability, which he did not. From the impugned order of the Appellate Authority, it is observed that that the Respondent had in the point 1 of the order reasoned once again that no file bearing the 'number' as sought by the Appellant existed in the office of the CPIO. The Appellant has already demonstrated in the foregoing paragraphs that this fact was contradictory as is evident from perusal of the relevant correspondences from the office of the Respondent Public Authority in this regard. In the very next point however, the Respondent Public Authority has stated that the file No. 842-65(A)/95-VAS dated 26.12.1995 basically contains only the License Agreement which "does not contain any opinions and notings as have been sought by the Applicant"
thereby completely missing sight of the fact that the Appellant had only sought certain specific information viz. Legal opinions 'about' the compliance of certain conditions & the payability of license fee & the notings contained in the related files maintained by the DOT and not notings 'in' the agreement. It is evident that with regard to the file No. 842-65(1)/95-VAS dated 26.12.1995 maintained by the DOT, the query of the Appellant is not the License Agreement itself but information relating to the Agreement contained in related files and hence the response of the Appellate Authority in this regard is seemingly evasive. Moving ahead, at point 3 of the impugned order, while the Appellate Authority admits that the information sought by the Appellant is available in the file marked 'SECRET', it is erroneously held by Respondent Public Authority that disclosure thereof is exempt under Section 8(2) of the RTI Act 2005. It is pertinent to discuss the provisions of the Section 8 (2) of the RTI Act 2005 at this juncture:
"..... Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests."
The reading of the aforesaid provision of law makes it clear that it is an enabling provision allowing the Public Authority to provide information to the Appellant in cases where the public interest prevails over protection of privacy of individual and the onus of proving otherwise while denying the information actually lies on the Public Authority. Hence it is observed that the provisions of the Section 8 (2) of the RTI Act 2005 are to be construed for providing information to the Appellant rather than denying the same. The CIC decision in the case of Sh.Sayantan Dasgupta in Appeal No. CIC/AT/C/2006/00087 dated 05.07.2007 has been referred in this regard by the Appellant while substantiating his arguments that ".....Section 8 (2) of the RTI Act 2005 empowers a Public Authority to disclose information even though it may be exempted under any of the above provisions [under Section 8 (1) of the Act], if the public authority is satisfied that public interest in disclosure of information outweighs the harm to the protected interest..."
20. The denial of the information on the ground that the information related to a file which was marked SECRET as it contained Cabinet papers is also untenable and invited objections from the Appellant on the ground that the information sought does not pertain to matters of National Security; also neither any specific Cabinet had been named nor had the denial been appropriately reasoned. The Appellant has placed reliance on the decision of Hon'ble Ms. Padma Balasubramanium, Information Commissioner while disposing of Appeal No. 146/ICPB/2006 in F. No. PBA/06/236 dated 25.10.2006 and on the decision of Prof. M M Ansari, Information Commissioner while disposing of Appeal No. 76/IC(A)/2006 in File No. CIC/MA/A/2006/00053 dated 03.07.2006 on similar issues. In the instant case at hand the Respondents in para 3 of their rejoinder have themselves admitted that the information sought related to a cabinet matter which was taken up in 2001 and that a decision had been taken by the Cabinet regarding dispute for payability of license fee, thereby making it clear that the matter has ended as far as the cabinet is concerned. At this stage, a reading of the Section 8 (1) (i) of the RTI Act 2005 alongwith the proviso thereto reveals that while the cabinet papers including records of deliberations of Council of Ministers, Secretaries and other officers are exempt from disclosure; the decisions of Council of Ministers, reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over. The case at hand relates to a Cabinet decision taken way back in the year/s 2001-02 thereby indicating that the decision having been taken by the Council of Ministers, the matter has already attained finality. Furthermore, perusal of the relevant file produced by the Respondent Public Authority, before the Commission during the hearing revealed that the Cabinet papers comprise only a single document in the entire file, which, in any case has not been sought by the Appellant.
21. The final averment of the Respondent while denying the information relates to the litigation pending in this case before the Hon'ble High Court of Delhi mentioning that the same Appellant represents Bharati Mobile Ltd., one of the interested parties before the Court. However simply an ongoing litigation cannot be a ground for denial of information neither is it covered under one of the exemptions under Section 8 (1) or 9 of the RTI Act 2005. The Respondent has failed to substantiate as to how the disclosure of the information is likely to impede the process of investigation or cause apprehension or prosecution of offenders. The judgment of the Hon'ble High Court of Delhi in the case of Bhagat Singh as discussed hereinabove, relied on by the Appellant is also very clear on this particular aspect. It has been clearly held in the said judgment that the mere existence of an investigation process [or a litigation as in the instant case] cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons which should be germane and the opinion of the process of investigation being hampered should be reasonable and based on some material. The Respondent had affirmed during the hearing and even in his submission on record that the M/s Bharti Mobile Ltd. had already paid the license fee of approximately Rs. 491 Crores as outstanding dues (for a period of 693 days). However, his contention in para 4(iv) of his rejoinder that the disclosure of information may cause loss of revenue to the Department is flawed as the matter remains subjudice and the decision may well be taken in favour of the Appellant by the Hon'ble High Court. The Commission holds that Justice in any case cannot be given on the basis of misplaced perceptions/ assumptions about the outcome of another pending case on the related issue since justice cannot be contingent upon another decision. The same position has been emphasized by the Appellant in his written submission dated 01.10.2009 placing reliance on the CIC decision of Anil Kumar vs. Department of Telecommunication in Appeal No. 76/IC(A)/2006 dated 03.07.2006. To deny the information sought on this ground that there 'may' be 'revenue' loss is therefore unacceptable as information can only be denied under the exemptions as given under Section 8(1) or 9 of the RTI Act 2005 and that merely because a matter is subjudice. As has been laid down by the Delhi High Court in its celebrated judgment of Bhagat Singh versus Chief Information Commissioner & Ors. while deciding the WP(C) No. 3114/2007 vide judgment dated 03.12.2007, relevant extract whereof is reproduced herinbelow as follows:
"... 13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1) (h) and other such provisions would become the haven for dodging demands for information. ..."
22. In any case, as has been rightly submitted by the Appellant, the Hon'ble High Court of Delhi may ultimately decide that the retention of the said amount by the DOT is illegal and liable to be refunded to the company i.e. Bharati Mobile Ltd. And in such an event, when the amounts are held to be no longer payable and therefore illegally retained, the amount paid by the company would not constitute "revenue" at all nor cause any "revenue loss".
23. It is the Commission's considered opinion that the new ground submitted by the Respondent Appellate Authority, who, incidentally was not present at the hearing and who, in violation of the provisions of Sections 19(1) and 19(3) of the RTI Act, 2005 had raised new ground, both in his response dated 15.05.2009 and in his rejoinder dated 29.09.2009 are indefensible, as already discussed in the foregoing paras hereinabove, cannot be taken into account by the Commission for the purposes of adjudication. The Commission holds that none of the grounds for denial of information as sought by the Respondent Public Authority, as discussed in various paras, fall squarely within the ambit of provisions of Section 8 (1) or Section 9 of the RTI Act 2005. It is important to recollect at this point that the Respondents were permitted, through oral directives, to furnish a written submission to the Commission to further elaborate on their contention that the information cannot be disclosed as it has no relation to any public activity or interest. As is evident from the foregoing paras, the Respondent has completely missed the target and instead has raised new grounds for denial, which he was specifically restrained from doing so. The complete disregard of the law coupled with the slack attitude of the Respondent Public Authority in even transferring the application well past stipulated time is noted and the CPIO is accordingly warned from repeating such mistakes.
24. The Respondent Public Authority has reasoned while denying the information that the Appellant is a Company and has placed reliance on the Guidelines dated 25.04.2008 issued by the Ministry of Personnel, P.G. and Pensions, Department of Personnel & Training, Government of India stating that information under RTI Act 2005 can be provided only to a citizen but not to Companies, Associations or Corporations which are legal entities but not natural persons nor to be classified as citizens. This contention of the Respondent Public Authority is clearly unsustainable as is evident from a complete reading of the same guideline since in the instant case at hand, the Appellant has represented itself through its office bearers/officers/members who have signed each application and/or appeal document mentioning their name/s thereby seeking the information in an individual capacity representing the Company M/s J Sagar Associates. The CIC has held in its judgments time and again [J C Talukdar's judgment by WB] that an application signed by an individual representing a legal or juristic entity is valid and information in such cases is to be provided. Furthermore as per the contentions of the Appellant, both Dheeraj Nair and Siddharth Sethi, the Appellants herein are no longer representing the company Bharti Airtel Ltd. in the matter pending before the Delhi High Court i.e. O.M.P No. 77 of 2001.
25. Hence, the Commission, after perusal of the records of the case, directs that the Respondent Public Authority shall make available all the file notings from the relevant files, as sought by the Appellant, with an option to the Appellant to inspect the relevant files, if he wishes to, on a mutually convenient date and to take certified copies of file notings he requires. As regards the remaining information pertaining to the three legal opinions, as sought by the Appellant, the Commission directs that the same be provided to the Appellant, using Section 10(1) of the RTI Act 2005, if required, after severing therefrom that part of the information which may be considered exempt under the RTI Act 2005 (giving reasons for the severance) before 10th November 2009, under intimation to the Commission.
26. The Appeal is disposed off accordingly on the above terms.
Decision in the matter was reserved and pronounced in open Court on 7th October 2009.
(Annapurna Dixit) Information Commissioner Authenticated true copy:
(G. Subramanian) Assistant Registrar Cc:
1. Mr. Dheeraj Nair, For J. Sagar Associates, 84-E, C-6 Lane, Sainik Farms, New Delhi-110062.
2. The CPIO Department of Telecommunications, O/o the director (AS-IV), Sanchar Bhawan, 20, Ashoka Road, New Delhi.
3. The Appellate Authority, Department of Telecommunications, O/o the director (AS-IV), Sanchar Bhawan, 20, Ashoka Road, New Delhi.
4. Officer in charge, NIC
5. Press E Group, CIC