Central Information Commission
R. V. Nagaraju vs National Highways Authority Of India ... on 6 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/NHAIN/A/2021/631776
R. V. Nagaraju ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
National Highways Authority of India,
Project Implementation Unit, Puducherry,
RTI Cell, 29, Sun City Road, ECR,
Bommaiyapalam, Tamil Nadu-605104. .... ितवादीगण /Respondent
Date of Hearing : 05/07/2022
Date of Decision : 05/07/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 03/11/2020
CPIO replied on : 18/02/2021
First appeal filed on : 15/03/2021
First Appellate Authority order : 15/06/2021
2nd Appeal/Complaint dated : Nil
Information sought:
The Appellant filed an RTI application dated 03.11.2020 seeking the following information:
"All the Documents that is Statement of Claim along with supporting documents, Statement of Defence along with supporting documents, Rejoinder along with supporting documents if any and any other 1 documents/pleadings related to Arbitration proceeding going on between National Highways Authority of India (NHAI) and Pondicherry Tindivanam Tollway Private Limited (PTTPL). The Arbitral Tribunal consists of three Arbitrators (Lt. Gen. Hari Uniyal, Presiding Arbitrator, Shri I.M. Singh & Shri Sudesh Dhiman, Arbitrators). The above mentioned Arbitration pertains to Concession Agreement dated 19.7.2007 for strengthening of the existing carriageway from Km 0.000 to Km 37.920 on the Pondicherry- Tindivanam section of National Highway No. 66 in the state of Tamil Nadu and widening thereof to 4 lanes and its improvements, operation & maintenance through a concession on build, operate and transfer basis."
The CPIO transferred the RTI application on 28.01.2021 to the CPIO /Regional Officer, NHAI, Chennai, Sri Tower, 3rd Floor DP, 34, Industrial Estate, Guindy, Chennai under section 6(3) of the RTI Act, 2005 for providing information directly to the appellant.
The CPIO/Project Director, NHAI, Tamil Nadu furnished a reply to the appellant on 18.02.2021 stating as follows:-
".............i) The applicant being a company, is not a citizen of India and it will not be entitled to seek any information under the RTI act.
ii) The documents requested by the applicant are not public documents and those documents are part of their record pending for adjudication before the Arbitration Tribunal.
iii) As per section 42A of the Amended Arbitration & Conciliation Act all documents related to Arbitrations are confidential documents and cannot be shared to a third party either by the Arbitrator or by the parties to the Arbitration.
2. In view of the above pretext, the information sought under RTI application cannot be shared."
Being dissatisfied, the appellant filed a First Appeal dated 15.03.2021. FAA's order dated 15.06.2021 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal on the following grounds -
"...It is submitted at the cost of repetition that, the Majority of the work in the road project was successfully completed by the Appellant as per EPC Sub Contractor. The majority of the claims in the said Arbitration proceedings 2 belongs to the Appellant and that the Appellant would be the ultimate beneficiary as PTTPL would pass on the entire proceeds of the Arbitral Award to NCCL after deducting its share as determined under the EPC Contract and the NCCL would further pass on the proceeds of the Arbitral Award to the present Appellant after deducting its share, if any. Hence, Disclosure of documents pertaining to Arbitration between NHAI (Govt of India) and PTTPL will not affect the commercial confidence between the parties to the arbitration as the ultimate beneficiary of the Arbitration proceeding is Appellant..."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Not present.
Respondent: S Sakthivel, PD/PIU & CPIO along with Director of PTTL (Third Party) present through video-conference.
The Commission remarked at the outset that the notice of hearing sent to the Appellant has been returned back undelivered with the remarks "Insufficient Address" and also the fact remains that the contact number annexed on the record does not belongs to him. The Commission is not in a position to send any further intimation to the Appellant in this regard for want of an alternate correspondence address in the records, therefore, in the interest of justice, the case is being decided on merits.
The CPIO invited attention of the bench towards the written submission dated 02.07.2022 filed by the PTTL, relevant extracts of which is reproduced below in verbatim -
"...i) The documents requested by the applicant are not public documents and those documents are part of the record pending for adjudication before the Arbitration Tribunal.
ii) As per Sec 42 A of the Amended Arbitration & Conciliation Act, all documents related to Arbitration are confidential documents and cannot be shared to a third party either by the Arbitrators or by the parties to the Arbitration.
iii) The Applicant made so many statements in his application, which are totally false and completely against the record. We shall submit detailed reply bringing on the record the true state of facts.
iv) There is no privity of contract between PTTL and the applicant in respect of the alleged Sub- contract agreement between NCCL and the Applicant.3
v) The applicant is trying to mix up incompatible things and raised mutually inconsistent pleas. One way the applicant confirmed himself in saying that the applicant is having an interest in the outcome of the Arbitration and another way he is asking for the pleadings and other documents in the Arbitration proceedings. Having an interest in the outcome of the Arbitration is totally different from having interest in Arbitration proceedings."
Upon Commission's instance , the Authorized Rep. of PTTL (Third Party) explained the subject matter and status of the averred arbitration proceedings in great detail and further reiterated their stand that the Appellant has no privity of contract with them, therefore information sought for cannot be divulged to him in terms of RTI Act.
Decision:
The Commission remarked at the outset that a similar issue has already been heard and decided by this bench in case no. CIC/MPOTR/A/2020/670958 on 29.12.2021 with the following observations -
"....The Commission based on a perusal of the facts on record observes that the issue for determination in the instant appeal is squarely covered by the decision of a coordinate bench in the matter of Baleshwar Kumar vs. Ordnance Factory Board, Nalanda (File No. CIC/CC/A/2016/000509/SD) dated 03.01.2017 wherein the following was held:
"Arbitration is a form of Alternate Dispute Resolution and one of the tenets of such dispute resolution is privacy and confidentiality. This is also apparent from Section 75 of the Arbitration & Conciliation Act, 1991 which states that:
'Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.' Now even so by virtue of Section 22 of the RTI Act, which also is the latter law in force, the above said position of law stands overridden, yet exemptions under Section 8 of the RTI Act allows for denial of information on certain grounds. In the facts of the present case, Commission deems it appropriate to invoke Section 8(1)(j) of the RTI Act in as much as the disclosure of information may cause unwarranted invasion of the privacy of the parties involved in the arbitration and further as a matter involving commercial implications, 4 disclosure at the pendency stage of arbitration may also be detrimental to the interest of the government exchequer which in effect is public money."
Adverting to the rationale of the above quoted decision, the Commission finds that while the CPIO has adequately discharged the onus of justifying the denial of the information sought for in the instant RTI Application under Section 8(1)(j) of the RTI Act, there is no infirmity in the said denial in as much as the arbitration proceedings are pending and disclosure of the information sought for by the Appellant does not warrant any larger public interest. Having observed as above, the Commission finds no scope of intervention in the matter as this stage."
Considering the applicability of ratio of above said judgement, the Commission finds no scope of further intervention in the matter and upholds the submissions of the CPIO.
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