Central Information Commission
J C S Reddy vs Bharat Heavy Electricals Limited ... on 15 July, 2022
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/BHELD/A/2021/136784
J C S Reddy ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Bharat Heavy Electrical Ltd.,
RTI Cell, BHEL House, Siri Fort,
New Delhi - 110049. .... ितवादीगण /Respondent
Date of Hearing : 13/07/2022
Date of Decision : 13/07/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 01/06/2021
CPIO replied on : 02/07/2021
First appeal filed on : 16/07/2021
First Appellate Authority order : Not on record
2nd Appeal/Complaint dated : 31/08/2021
Information sought:
The Appellant filed an RTI application dated 01.06.2021 seeking the following information:
"Please provide the following information pertaining to Kaleswaram Project (Pranahita Chevella), in regarding to supply of Motors, Pumps, including auxiliary equipment such as Static excitation, SCADA & bus duct etc. as 1 supplied by BHEL, for the packages 6, 8, 10 & 11 located in Telangana state:-
Kaleswaram Project is a mega lift Irrigation for which you have supplied a minimum of 1500 MW pumps & motors, in Telangana state.
1) No. of motors & pumps with capacity in MW's supplied in each package of 6, 8, 10 & 11, may be intimated.
2) Cost of each Motor & Pumps, along with auxiliary equipment such as static excitation, SCADA & Bus Duct etc. in each package of 6, 8, 10 & 11, may be intimated?
3) Total amount of the work order in each package of 6, 8, 10 & 11, including Work Order date, Name of the contractor, who ordered the machinery, may be intimated?
4) Whether BHEL entered into annual maintenance? If so, amount of contractor per annum and no. of years, may please be intimated in each package of 6, 8, 10 & 11?
5) Whether price escalation clause is applicable? If so, what is the amount in each package of 6, 8, 10 & 11 may be intimated?
6) What is the total amount received by BHEL and amount due from each package of 6, 8, 10 & 11 may be intimated?
7) Finally, I hope that, I may receive above information, since BHEL has already informed to Sri N. Janardhan Reddy, vide reference 1st cited on line RTI 1st appellant authority."
The CPIO replied to the appellant on 02.07.2021 stating as under :-
"The information sought by RTI applicant is commercially confidential in nature and hence cannot be shared with applicant in the business interest of BHEL. The above is in line with Chapter II, Section 8 (1)(d) of Right to Information act,2005 as per which "information including commercial confidence, trade secrets or intellectual property,the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information."
Being dissatisfied, the appellant filed a First Appeal dated 16.07.2021. FAA's order, if any, is not available on record.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
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The following were present:-
Appellant: Present through video-conference. Respondent: Atin Srivastava, Dy. Manager & CPIO present through video- conference.
The Appellant expressed at great length his dissatisfaction with the denial of information by the CPIO against points no. 1-6 under Section 8(1)(d) of RTI Act. To a query from the Commission regarding his locus standi to the Telangana Kaleswaram project, the Appellant stated that although he was not directly associated with the project however, as an informed citizen he has every right to know the cost and work done on it as it entails public money.
The CPIO submitted that a timely response has already been provided to the Appellant and the FAA also vide order dated 13.08.2021 disposed off his First Appeal. He further reiterated the denial of information under Section 8 (1)(d) of RTI Act.
Decision:
The Commission based on a perusal of the facts on record finds that the denial of the information by the CPIO in response to points no. 1 to 3 & 6 under Section 8(1)(d) of the RTI Act is completely inappropriate.
The primary essence of information sought for Kaleswaram Project which is a mega lift Irrigation project revolves around the total cost and the total number of Motors, Pumps and other auxiliary equipment supplied in each package of 6, 8, 10 & 11 of the project, total amount of the work order as also the total amount received by BHEL for these packages. Since the pubic authority is providing irrigation facilities in the averred project through their contractors who have entered into a contractual agreement with the Govt. of India at the cost of the public exchequer, therefore ,sharing of information cannot be said to hamper commercial confidence. As a matter of fact, information of such nature should ordinarily be placed in the public domain once the contract is concluded in keeping with the tenets of probity and transparency to be maintained in the commercial transactions of the public authorities.
In this regard, a full bench decision of the Commission in File No. CIC/AT/A/2009/000964 dated 03.09.2009 on the imperativeness of transparency in similar forms of contractual agreements of public authorities is of relative 3 importance as it adds perspective to the right to information of the Appellant in the instant case; the relevant extract of the averred decision is stated hereunder:
"18. Planning Commission ⎯ which has a separate Department / Section dedicated to Public Private Partnerships and is known to have prepared the Model PPP Agreements for the Government ⎯ has categorically stated that any plea of confidentiality of those documents (PPP Agreements) was insubstantial and deserved to be rejected. Comptroller & Auditor General of India also advised the Commission that there was no room for confidentiality in matters such as PPP Agreements.
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20....Such private parties frequently win the right to participate in the PPP Agreement in open competition, or are selected for their exclusive and extra- ordinary competence in specified areas of activity. In either case, it is necessary that there is complete transparency about whether the selection of the Private Partner by the Government was made correctly and carefully and, that all aspects of the issue ⎯ environmental, social and human included ⎯ were seriously considered by the Government in making the choice. A matter of such critical importance to the country cannot be negotiated and settled behind the back of its people. The third-party cannot take recourse to the argument of its vital commercial and technical details being disclosed to its rivals for the simple reason that it is the consideration of these very details that won him the competitive bidding in the first place. It is important and crucial that the choice of the Private Partner by the Government is not cloaked in undue secrecy.
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25....These Agreements would involve commitment of the Government's financial and physical resources. If PPPs were not the mode of project execution, the entire operation would then be conducted by the Government and would have been subject to the provisions of the RTI Act, and all information thereof would be disclosable. It would be vain to argue that functions which were earlier transparent when performed by Government exclusively, should become opaque now that these are to be performed through PPP. This will amount to reversal of transparency and would be antithetical to public interest." Emphasis Supplied Having observed as above, the Commission finds no reason to withhold the information sought for at points no. 1 to 3 and 6 of RTI Application in the instant case. The CPIO is hereby directed to provide the readily available information as sought for on the said points of RTI Application to the Appellant free of cost within 15 days from the date of receipt of this order under due intimation to the Commission.4
Notwithstanding the aforesaid, the Commission further notes from a close scrutiny of the contents of RTI Application that the queries raised by the Appellant at points no. 4 , 5 & 7 do not conform to Section 2(f) of RTI Act; as he has sought for clarification from the CPIO based on interrogatories. In this regard, 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.
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 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) The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 5