Central Information Commission
Savio J F Correia vs Mormugao Port Trust on 25 January, 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/MPOTR/A/2020/670958
Savio J F Correia ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Mormugao Port Trust,
RTI Cell, Administrative office,
Headland, Sada, South Goa - 403804. .... ितवादीगण /Respondent
Date of Hearing : 29/12/2021
Date of Decision : 21/01/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 01/04/2020
CPIO replied on : 27/04/2020
First appeal filed on : 01/05/2020
First Appellate Authority's order : 14/05/2020
2nd Appeal/Complaint dated : NIL
1
Information sought:
The Appellant filed an online RTI application dated 01.04.2020 seeking the following information:
(1) The total amount due and payable by M/s Adani Mormugao Port Terminal Pvt Ltd to MoPT as on 31 March 2020.
(2) Certified copies of all records and correspondence indicating steps taken to recover the outstanding amount from said M/s Adani Mormugao Port Terminal Pvt Ltd in the last 24 months.
The CPIO denied the information to the appellant on 27.04.2020 under Section 8(1)(j) of the RTI Act, 2005 on the plea that the concerned third party has denied to disclose the same.
Being dissatisfied, the appellant filed a First Appeal dated 01.05.2020. FAA's order dated 14.05.2020 upheld the reply of the CPIO and observed that arbitration was in progress, hence the matter was sub-judice.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal on the ground of denial of information by the CPIO.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: Ananta V.P. Chodnekar, FA and CAO/CPIO present through video- conference.
The Appellant expressed his dissatisfaction with the denial of information by the CPIO under the garb of Section 8(1)(j) of RTI Act and also on the plea that the matter is sub-judice under arbitration proceedings. He stated that the information sought by him relates to dues payable by M/s.Adani Mormugao Port Terminal Pvt. Ltd. (AMPTL) to Mormugao Port Trust. That, AMPTL is a PPP concessionaire of coal terminal at Berth 7 of Mormugao Port Goa and MOPT is a public-funded major port trust, thus none of the exemption clauses are applicable for denying the disclosure of such information.
The CPIO invited attention of the bench towards his written submissions dated 27.12.2021, contents of which are extracted hereunder:2
3. " ....In response, M/s AMPTPL vide their letter with ref no. AMPTPL/2020/356 dtd. 04th April, 2020 (copy enclosed) have submitted the following:
i) As per the provisions of Section 11 of the RTI Act, whenever the concerned Public Information Officer intends to disclose any information or record or part thereof relating to any third party, the fact that such application is received needs to be communicated to the third party and invite the third party to make submission in writing or orally regarding whether the information should be disclosed.
ii) That the said documents as sought by Shri. Savio Correia are not required to be furnished and not to provide the information as this being their personal information and disclosure of which has no relationship with any public activity or interest.
iii) With respect to the request of providing copies of said documents and other details, they have stated that the disclosure of the same might harm their competitive position and cause unwarranted invasion of privacy. They have expressed their apprehension that the said information if divulged might fall in the wrong hands and may be used by the competitors and rival organizations, which shall be prejudicial to their interest. They have also submitted that the said information is absolutely confidential and privileged one and hence such permission should not be granted to Shri. Savio Correia.
iv) In reference to their above referred submission, they have also drawn attention to the provisions of Section 8(1) of the RTI Act which clearly states that the information which are of commercial confidence, trade secrets, intellectual property or harm the competitive position should not be disclosed. They have also invited attention to the decisions of the Hon'ble High Courts and also of the Hon'ble Supreme Court, wherein it is held that no information has to be supplied under the RTI Act if disclosure of such information is likely to be misused for personal interest and for rowing inquiry. Disclosure of information cannot be permitted to lead into multiplicity of unwarranted proceedings at the instance of any person having vested interests.
v) In view of the above and also Section 11 of the RTI Act, they have informed that they have strong objection in providing any information to Shri Savio Correia and have requested not the divulge the said documents or any other information to Shri. Savio Correia and reject the application dtd. 01/04/2020. They also further requested not to furnish any such information without their prior concurrence even in future if the Port is in receipt of such request/ application by Shri. Savio Correia or any other appellant.
4. It is further informed that the Port had invoked arbitration proceedings against M/s AMPTPL on 27.06.2019, for non payment of royalty on storage charges, the first hearing of which was held on 24.09.2019. Till date, 26 arbitral sittings have taken place. M/s AMPTPL has disputed the Port's claims and filed counter claims against the Port. The Arbitral Tribunal has 3 directed both the sides to submit written submissions on oral arguments. In view of the amount claimed by the Port being disputed and sub judice and recovery of the amount being dependent on the outcome of the arbitration, it would not have been prudent to commit any figure as being receivable by the Port from M/s AMPTPL at this stage.
5. Committing any figure as receivable may have an adverse effect and could harm the Port in its arbitration. The Port could also be subject to cases filed by M/s AMPTPL for divulging any confidential information in spite of their rejection of our request to disclose the sought information. Accordingly, the Port vide its letter no. FA/CDC/RTl/2020/02 dtd. 27.04.2020, had informed the appellant Shri. Savio Correira that the information sought by him cannot be disclosed.
6. The appellant preferred first Appeal before the appellate authority i.e Dy. Chairman, Mormugao Port Trust, on 01.05.2020. The appeal filed through RTI online portal was registered under no. MPOTR/E/2020/00001. The first appeal was dismissed by the Appellate Authority vide letter no. FA/CDC/RTl/2020/15 dtd. 14.05.2020 on the identical ground of rejection by CPIO i.e personal information and further that arbitration is in progress and the matter is subjudice.
7. The appellant has stated that CPIO has furnished an identical RTI query filed by the Appellant vide earlier communication dtd 27.05.2019. This proves that the Port did not have any malafide intention in not disclosing the information sought subsequently by the appellant vide letter dated 01.04.2020. It may also kindly be noted that the Port had invoked arbitration on 27.06.2019 which is prior to the appellant's application dated 01.04.2020.
8. It is therefore humbly submitted that the Port has not disclosed the sought information only due to refusal of the third party M/s. AMPTPL to share the information and also due to the fact that the matter is under arbitration and subjudice and not due to any malafide intentions. It is further stated that the Port's claim has been disputed by M/s AMPTPL in the arbitration and furnishing any figure would not be prudent at this stage....."
Decision:
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:4
'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, 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.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) 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