Central Information Commission
Samir Sardana vs Kandla Special Economic Zone on 10 August, 2020
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सुचना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मुिनरका, नई द ली - 110067
Munirka, New Delhi-110067
File No.: CIC/KSEZO/A/2019/653427+653429
In the matter of:
Samir Sardana
... Appellant
VS
CPIO / Dy. Commissioner
Kandla Special Economic Zone,
Ministry of Commerce and Industry,
Gandhidham, Kutch, Guajarat - 370 230
...Respondent
RTI application filed on : 26/07/2019 CPIO replied on : 19/08/2019,28/08/2019, --/08/2019 First appeal filed on : 04/09/2019 First Appellate Authority order : 26/09/2019 Second appeal filed on : 08/10/2019 Date of Hearing : 05/08/2020 Date of Decision : 05/08/2020 The following were present: Appellant: Present over phone
Respondent: Shri Surender Meena, Appraiser and APIO, present over phone Information Sought:
The appellant has sought the following information.
1. Audits and Consultants:1
Provide the details of the audits carried out w.r .t. the KASEZ operations (in the last 7 years, besides the statutory audits under applicable statutes, as under:
Nature and Type of Audit (Energy/Efficiency /Internal/Safety/ Insurance/ Environmental /CAG / Hazardous Cargo etc); Date of Audit; Period covered by the Audit; Name of Auditor; Scope of Adult.
2.Provide the details of the Management Consultants engaged for KASEZ operations (In India and overseas - including subsidiaries and JV), in the last 7 years, besides IT Consulting assignments, as under
Nature and Type of Consulting assignment (strategy/ bank finance, operational improvement/ Energy/ Efficiency/ Internal/Safety/ Insurance/ Environmental /CAG / Hazardous Cargo etc); Date of Consulting assignment; Period covered by the Consulting assignment; Name of Management Consultant; Scope of Consulting assignment.
3.Private Sector Benchmarking PIO to confirm whether the KASEZ has engaged any 3rd party or agency to benchmark the financial and operational performance of KASEZ with the private sector or Government owned entities in the SEZ business in India and overseas, in the last 7 years, as under:
If yes, provide the date of such engagement, name of the agency or Team, scope of work of the said engagement and fees paid to the said agency
4.PIO to confirm whether the Ministry of Commerce has engaged any 3rd party or agency to benchmark the financial and operational performance of KASEZ with the private sector or Government owned entities in the SEZ business in India and overseas, in the last 7 years, as under:
If yes, give the date of such engagement, name of the agency or Team, scope of work of the said engagement and fees paid to the said agency
5. And other related information.
Grounds for Second appeal The CPIO has denied providing the desired information.
2Submissions made by Appellant and Respondent during Hearing:
The appellant during the hearing reiterated that his written submissions contain very critical, important and strategic information and hence, should be considered in toto. However, after going through his e-mails the Commission could not find any substantial submissions in the trail of emails. Shri Arun Kumar, CPIO, KASEZ sent written submissions in respect of case no. CIC/KSEZO/A/2019/653427 & CIC/KSEZO/A/2019/653429 and submitted that in this connection, the CPIO has followed the direction of the FAA given in Order No. 01/2019-20/APL/RTI/KASEZ DATED: 26/30.09.2019 and transferred the application u/s 6(3) of RTI Act to the concerned Public Authorities. In this regards, copy of transferring the application u/s 6(3) of RTI Act to other Public Authorities and reply received from such Public Authorities, if any, were submitted for necessary action.
The CPIO vide his Written submission also responded in respect of 1st, 2nd & 3rd representation of the appellant for hearing of case CIC/KASEZO/A/2019/653429 & CIC/ KASEZO/A/ 2019/653427. His submissions read as follows:POINT No. 10
Part-1: PIO has made incomplete replies to some information requirements on some critical parameters.
He submitted that the RTI application of the appellant was forwarded to different sections /branches (deemed PIO) of this office under section 5(4) of RTI Act, 2005 as the required information was not held with the CPIO. Based on the reply received from the concerned deemed PIOs, the CPIO had provided the information to the appellant. Each deemed PIO has provided the point wise information held with them and the information which was not available/held by them were not provided to the CPIO & this was specifically mentioned in the CPIO's reply dated 30.08.2019. Further, it is to mention that the deemed PIOs also can only provide information which is held by them in material form and they are not supposed to create information under RTI Act.3
Part -2 : False replies by PIO The deemed PIOs can only provide information which is held by them in material form and they are not supposed to create information under the RTI Act. Loss making /defunct units were not operational and had not submitted APR on regular basis, thus the same were not available with the deemed PIOs & accordingly, it has been replied by them that there were no non-operational unit and hence the APR were not available.
Part-3 : Illegal rejection under Section 8(1)(d) of RTI Act,2005 Information was sought to provide ITCHS tariff code of the material, spare item, goods & services exported by each KASEZ Unit, which were denied under Section 8(1)(d) of RTI Act,2005 since it relates to commercial confidence, trade secrets or intellectual property and disclosure of the same would harm the competitive position of third party. However, it is submitted that general description of authorised operation (viz. Manufacture/trader/warehousing unit, details of manufacturing item etc) of each KASEZ Units are already available in public domain on KASEZ website under the heading "List of working Unit". Further, revealing the technical detailed information of each unit would harm their competitive position, hence they were rejected under Section 8(1)(d) of RTI Act,2005 for being commercial confidence, trade secrets or intellectual property. For example there are many pharmaceutical units under KASEZ who are manufacturing medicines and doing some research work on medicine including present pandemic COVID-19.
Part-4 : Incorrect transfer made by PIO under Section 6(3) of RTI Act - after the FAA Order In compliance with the FAA Order dated 26/30.09.2019, the CPIO has transferred the application to different Public Authorities such as CBIC, CBDT, DRI, ED etc as per Annexure-IX of the 1st written submission made vide this office letter F.No. KASEZ/CIC/Appeal/01/2020-21/17779 dated 21.07.2020, which was also emailed to CIC & the appellant on 24.07.2020 & 31.07.2020 as well.
Part-5 : PIO has not updated the Section 4(1) data It is pertinent to mention here that proactive disclosure under Section 4 of the RTI Act is not under the domain of the CPIO but the nodal officer appointed by the public authority under the the RTI Act. In compliance with the FAA order dated 26/30.09.2020 the direction was given to the Nodal officer by the FAA and the same has been duly complied with.4
Part-6 : No transfer made under Section 6(3) of RTI Act Under Para 2 of DoPT OM No. NO.10/2/2008-IR dated 12.06.2008, the obligation to address the RTI application to the Concerned Public Authority under Section 6(1) of RTI Act, 2005 is on the RTI applicant itself and PIO is under no obligation to transfer the RTI application to multiple department/public authorities Observations:
At the outset it was found pertinent to mention here that the appellant was sending lengthy written submissions despite the fact that he already had filed a detailed second appeal and in his RTI application itself he cited several case laws to support his claim for information. The appellant is therefore advised to understand the limited resources of the Commission and to behave responsibly in future and try to be specific and precise. Taking into consideration the voluminous information sought by the appellant in his single RTI application, the Commission finds it important to refer to Rule 3 of the RTI Rules 2012 which reads as follows:
3. Application Fee.--An application under sub-section (1) of Section 6 of the Act shall be accompanied by a fee of rupees ten and shall ordinarily not contain more than five hundred words, excluding annexures, containing address of the Central Public Information Officer and that of the applicant: Provided that no application shall be rejected only on the ground that it contains more than five hundred words.
Keeping in view the above rule, it transpires that it is expected from the RTI applicant/ citizen that they would make efforts to file a RTI application containing information sought within the limit of five hundred words. A citizen is one of the principal pillars of the country and is entitled to enjoy all the legal rights and privileges granted by the Government but is also obliged to obey its laws and to perform his or her duties as called upon. We are all citizens of our country and as rights and duties are co-related, one should be mindful of one's duties towards the country. As the appellant appears to be a responsible citizen who is concerned about the functioning of the public authorities, it implies that he knows his duty adequately and will comply with the rules to ensure minimum exhaustion of the resources of the Commission as well as the public authorities.
In view of the same, it is expected that in future he will file RTI applications keeping in view the limitations.
5It was noted that the appellant in his second appeal mentioned that the PIO of KASEZ had sent three replies on 3 different dates. The 1st PIO reply is dated 19.08.2019, wherein, the PIO has asked for a fee of some amount. The appellant asked what information is provided, what information is rejected and what are the number of pages of each information and why the information is not available in e-format and why the information is not available on the portal u/s 4 of the RTI Act by an email sent to the PIO.
He further submitted that the 2nd reply of the PIO dated 28.08.2019, was the explanation of the fees - but still the PIO reply and the reason for information refused or rejected and e-data and why the data was not listed in section 4 of the RTI Act was not there.
Furthermore, he pointed out that the 3rd reply of the PIO was dated 30.08.2019 (by email) which gave a para by para reply/reponse - although some replies were illegal - but the PIO provided the information free of cost - for which he had asked for fees in the 1st reply.
The appellant further contended that the PIO admitted in the letter that the NODAL PIO of KASEZ had failed to upload the data u/s 4(1)(b) of the RTI Act. The RTI application was received by the KASEZ on the 8th of August,2019 - so it may be said that even the 3rd reply of the PIO was received in 30 days and the PIO has provided all the agreed information free of cost in e-format - by email and sent some by speed post. The FAA order has also agreed that section 4(1)(b) data was not uploaded. The FAA order has provided no reasons for 3 PIO replies. The FAA order has also agreed that the PIO failed to make the section 6(3) transfers. The FAA order has failed to explain as to why the information was rejected u/s 8(1)(d) of the RTI Act. The FAA has not addressed at all, some of the specific issues raised in the grounds of appeal. The PIO has rejected some of the information sought by the appellant, as under:
He further contested that the PIO has rejected the following information u/s 8(1)(d) of the RTI Act.
PIO to confirm that it can provide the itc tarriff codes of the material and spares items and goods and services exported by each KASEZ unit from the KASEZ misleading/false information. The PIO has made replies which make no sense w.r.t the understated information, the PIO replies stating that the reply for "this section" (the applicant is made to the KASEZ as a whole and not to any specific section). The information sought was regarding whether KASEZ has 6 engaged any 3rd party or agency to Benchmark the financial and operational performance of KASEZ with the private sector or Government owned entitites in the SEZ business in India and overseas in the last 7 years. The PIO reply- was that this section has not engaged any third party or agency to benchmark the financial and operational performance of KASEZ with the private sector or Government owned entities.
He further submitted that the PIO has made no transfer u/s 6(3)of the RTI Act with respect to the following information requirements as under:
(Point no. is 2 As per CPIOs reply)
(b) Have Ministry of Commerce engaged any 3rd party or agency to benchmark the financial and operational performance of KASEZ with private sector or Government owned entities in the SEZ business in India and overseas, in the last 7 years?
If yes, the date of such engagement, name of agency or Team, scope of work of the said engagement and fees paid to the said agency:
c) Have any Government or Private Entity engaged any 3rd party or agency to benchmark the financial and operational performance of KASEZ with private sector or Government owned entities in the SEZ business in India and overseas, in the last 7 years If yes, the date of such engagement, name of the agency or Team, scope of work of the said engagement and fees paid to the said agency:
d) If the KASEZ has done a benchmarking of the financial and operational performance of KASEZ, in the SEZ business in India and Overseas, in the last 5 years?
- This section has not done any benchmarking of financial and operational performance of KASEZ, in the SEZ business in India and Overseas, in the last 5 years.
If yes, the date of such engagement, name of the agency or Team, scope of work of the said engagement:
e) If the Ministry of Commerce has done a benchmarking of the financial and operational performance of KASEZ, in the SEZ business in India and overseas, in the last 5 years?
If yes, the date of such engagement, name of the agency or Team, scope of work of the said engagement (Point no. is 8 as per CPIO's reply) Information w.r.t. cases of "Raids" by DRI/Income Tax and Customs on the SEZ or the SEZ Units in the last 3 years.
7He further submitted that In Paras 4 and 5 of the PIO's reply it was mentioned as Not available with this concerned section, whereas the query was related to Annual Reports of the Developers and Co-Developers of KASEZ.
(Point no. is 5 as per CPIO's reply) The appellant contested that the PIO has provided information w.r.t. FIR.PIO HAS NOT stated that besides the 2 cases there was no enquiry initiated on any KASEZ staff (Enquiry precedes FIR for several types of offences.
The critical facts which he was pressing for during the hearing also are as follows:
1.The PIO has illegally rejected some of the critical information sought, as stated in para 1.2 above and has also made 3 PIO replies which is per se illegal
2.It is in the letter of the law and several case laws that reasons for rejection should be specific and with some basis and logic as under :
PIO has not stated the specific reasons and rationale for the rejection of the RTI Application - on the grounds of generic nature DOPT Circular - F.No.10/1/2013-IR- dated the 6th of October,2015 states that the PIO has to state the "detailed reasons for refusal or rejection" - and the same is also supported by "Section
2. 4(1)(d)" of the RTI Act,2005 Non-Provision of Reasons for Rejection, is a Violation of Section 7(8)(i), of the RTI Act,2005 Non-Provision of Reasons for Rejection, is a Violation of Section 4(1)(d), of the RTI Act,2005 Non-Provision of Reasons for Rejection is a violation of SC Judgments, as under:
The SC held that "reasons" for administrative decisions and quasi judicial decisions "must be recorded in detail", to "support the conclusions", if they affect anyone "prejudicially", and "must be communicated" to the concerned person Civil Appeal No. 9095 of 2012 (Arising out of SLP(C) No.7529 of 2009) in the case of Manohar s/o Manikrao Anchule Vs.State of Maharashtra & Anr.
Refusing information w/o reason and w/o providing the justification of the section and its applicability to the information sought is a sign of malafide intent by the PIO, and liable to penalty - as per CIC/HC case laws - illustrated below for Section 8(1) of the RTI Act,2005.8
He further referred to the order of the Hon'ble High Court Of Delhi In W. P. (C) 12428/2009 & Cm Appl 12874/2009 Deputy Commissioner Of Police Versus D.K.Sharma -Judgment Dated 15-12-2010 "This Court is inclined to concur with the view expressed by the CIC that in W.P. (Civil) 12428/2009 order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act Hon'ble High Court of Kerala in Ibrahim Kunju v. State of Kerala AIR 1970 Ker 65. If no reasons are given in the appellate orders, then it is injustice to the natural justice because quasi judicial obligations are giving reasons for order, since justice is not expected to wear the inscrutable face of a sphinx"
He further stated that the information sought was neither vague nor ambiguous and was specific He tried to justify his pleadings by stating that the information sought by the RTI Applicant is of "vital importance" and in Public Interest and should be in the public domain considering the dismal state of exports and the costs to the state to increase exports via SEZs and the specific frauds therein. The Commission finds it a mere oral allegation which is unsubstantiated and hence not proved.
However, the appellant went on submitting that the pathetic state of the exports from the SEZ is assessed by the number of non-operative units and the poor capacity utilisation of the SEZ units - information of which is in public and national interest. The planning of the GOI is highlighted by the fact that the GOI has done no benchmarking of the operations of the SEZ per se, and the SEZ units within - for each sector with comparable peers, in India and the global competition If a sector, say X, exists in a SEZ in a specific maritime geography and its global export hub, is in Country A, and the GOI has not been benchmarking the operating parameters of the Indian SEZ and the SEZ units of that sector (X), every 3 years - then the said SEZ units in sector X, in India, will definitely cease to exist, or be in a state of terminal decline or exist at the mercy of competitors With the miserable performance of the Indian Rupee, and its impact of reduction in Dollarised Rupee costs payable to the SEZ authority by the SEZ units - why are the exports from the SEZs still a failure In addition, in several sectors, the rupee costs paid by the SEZ units to the SEZ Authority, are not the determinant for operating and financial viability of the SEZ units.9
He further argued that in essence, the GOI has utterly failed to provide a level playing field to exporters in this nation, in terms of admin costs, operating cost neutrality, financing costs, effective logistics costs and fiscal red tape and procedures The centres of manufacturing excellence near SEZs (For CMT/Job work/Material and Labour sourcing) are not cost effective - as there is no synergy between the SEZ and the Industrial planning and policy The strategy of the GOI is highlighted by the fact that the GOI has engaged no 3 rd party to analyse the inefficiency of the operating parameters of the SEZ , per se, and the SEZ units within the SEZ - for each sector within it , with comparable peers in India, and the global competition What planning and strategy will the GOI do, if it has no formal analysis of the specific operating costs, parameters, management and other issues, which explain the dismal state of the SEZ units by sector, scale and management quality.
The dismal state of the GOI planning is that the GOI has not properly planned the sector profile of the units in each SEZ, to ensure that the right sectors are in the appropriate geography, in the right SEZ, to minimise the net logistics costs on the EXIM chain, and minimise the inward material logistics costs - considering the future dislocations in inward and external material sources and options of transhipment and alternative export markets. Several SEZs invest limited equity in SEZ units and common service providers, like banks, facilities, hotels, accounting firms etc, as a demonstration of their stake in the SEZ and their strategic inputs in the planning and operation of the same - which is then used to lower the lease charges etc - which is completely absent in India.
All of the above is to be seen in the light of the fact that the SEZ has no data of the financial or operating performance of the SEZ units, loss making units or even the financial and operating performance of the Developers of the SEZ - and is naturally not concerned with the losses or the financial performance of the SEZ units therein.
The peculiar pattern of CMT and Job workers of key sectors such as Gold and Diamond jewellers, with multiple movement of stocks at different processors o/s the SEZ - is not the norm for Gems and Jewellery SEZs or SEZ units - and represents an abnormal industrial agglomeration with a planned and structural dislocation in manufacturing and processing operations - which cannot be solely for the purposes of manufacturing and commercial efficiency.10
Information on raids and prosecutions is critical especially in sectors with high import duties (on merit mode) for inputs, customised finished goods (wherein DRI/Customs cannot assess over invoicing),frequent movements to and from 3 rd party processors (which makes the case for wastages and losses in SION and disappearing materials), materials where the EXIM transit time is a few hours and the logistics costs are less than 1% of CIF/FOB rates, inputs and outputs with marked diferences in rates of different grades of items and offgrades, per se, warehousing artificial losses, amortisable costs , bad debts and write offs in select SEZs (to be used for 3rd party exports or mergers to obviate tax on SEZ profits),items where the SEZ units are well aware of the sampling and test checks of the DRI and Customs at the SEZ for the inputs and outputs etc. The Gems and Jewellery industry is run by cartels from a particular community spread from Western India to North America,EU,East Asia,West Asia and Africa and is a well coordinated money laundering and smuggling operation from the state of rough diamonds and raw gold, to the marketing of jewellery and warehousing of processed and raw diamonds, the banking chain, raters and the chain of associate and front companies - which is all the more insidious, as all the data with DRI/ED/Customs/Interpol used by the Indian State for surveillance is all originate from the overseas counterparts and partners of the Indian traders located in India (Who are in many cases - in spirit the same de facto entity owners) The premise that Indians are the least cost labour source for the jewellery sector and their informal working style (w/o documentation, using informal labour and in slum style conditions) is an innovative marvel of Indian Genius, is a pathetic fraud and deception, and the entire array of fiscal and monetary sops for this sector (including SEZ) Allows the sector to generate financial buffers via money laundering, tax arbitrage, treasury operations, merchanting exports, accomodation financing , cash financing, alternative fund transfers, FX speculation, leveraging double and layered financing, defrauding Indian Merchant exporters such as STC and MMTC, Credit insurance fraud etc. which provide the sector the pricing edge in overseas markets ( via illegal, nefarious and fraudulent means) In his second appeal he sought the following relief:
1. Penalty on the PIO ( under Section 19(8)(c), of the RTI Act,2005 )
2. Dismissal of the PIO on account of illegal,deliberate,malafide and baseless reply 11
3. Administrative action and/strictures, against the PIO (under Section 20(2) , of the RTI Act,2005 )
4. Recommendation to the KASEZ and the GOI - Ministry of Commerce , for administrative action and/strictures, against the PIO
5. Impose Maximum Penalty, on the PIO under Section 20(1) ,of the RTI Act,2005
6. Direct the Respondents to refund the Application fee paid by Complainant while submitting RTI Application, as per section (7)(6) of the RTI Act
7. Provide the information free of cost u/s 7(6) of the RTI Act
8. Invoke its powers under the RTI Act to issue any other direction or recommendation as it may deem appropriate.
9. Direct the public authority to make entry in Service Book/Annual Performance Appraisal Report of the Respondents for defying the provisions of the Act Compensation for the Appellant for pecuniary and other loss He again mentioned the Grounds for Relief against the PIO, as under: Ground No.1 - 3 PIO Reply to 1 RTI Application The PIO has made 3 PIO replies to 1 RTI Application Ground No.2 - PIO has made No Transfer U/S 6(3) of the RTI Act The PIO has not made Transfers U/S 6(3) of the RTI Act Ground No.3 - The PIO has made Misleading Replies and not made Section 4 Disclosures The PIO has made Misleading Replies w.r.t some Information requirements Ground No.4 - The PIO has made no replies to some Information requirements The PIO has made no replies to some Information requirements which is a Deemed rejection under Section 7(2) of the RTI Act Ground No.5 - The PIO has made Illegal Rejection U/S 8(1)(d) of the RTI Act The PIO has made an Illegal, Baseless, Foolish and Malafide rejection u/s 8(1)(d) of the RTI Act It is also pertinent to mention here that his second appeal was also abnormally lengthy with same sort of submissions, and hence the relevant paras which were found to be the crux were mentioned above.
The Commission perused the RTI application of the appellant and observes that the following information was sought by the appellant.12
"1.1.This is a "RTI Application u/s 6(1)" of the "RTI Act, 2005" - which can be transferred by you u/s 6(3) and 5(4) to as many PIOs as you deem fit 1.2..A copy of this RTI Application is being sent to you, "via e mail", which is allowed as per Section 6(1) of the RTI Act,2005 1.3.The information is sought vide Section 2(f) of the RTI Act,2005, as under:
(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
1.4. .The information sought is provided in Para 6 below. In case, the PIO for any reason is unable to provide the information sought, the PIO is to allow the inspection and photographing of the said and related records - in order for the applicant to prepare, compile, collect and collate the information 1.4.1..Section 2(j) of the RTI Act on "Photographing" 1.4.1.1.Kindly note what "Section 2(j) of the RTI Act,2005",states w.r.t "Photographing information" w.r.t the inspection to be done at your office :
iv) obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device;
1.4.2.The "CIC case laws" on Photographing The "CIC case laws that allow photographing of any information or document", are given below :
CIC Case Law - 1 -Central Information Commission Case Law - CIC/AD/A/09/00125 Name of the Applicant : Mr.Sidharth Mishra Name of the Public Authority : BSNL, Cuttack 1.4.3.The Judgment........
The Commission invokes Section 2(j) (iv) of the RTI Act to allow use of camera by the Appellant to take photos of documents required. Accordingly, the CPIO is directed to provide all the information as requested by the Appellant in his RTI request dated 18.08.08 and also allow the use of photographic camera for 13 taking photographs of records in the file which the BSNL had agreed to show to the Appellant. The information to be provided within 15 days of the receipt of this Order.
3.2.The Information sought, as stated in Para 5 below, is sought in e-format, on a CD or a Pen Drive,in MS-Word or Excel or any other format, as far as possible (as all the data would be available with KASEZ in E-format or on SAP or ERP or other Software Module) 3.3.PIO MAY NOTE THE CONTENTS OF PARA 6 TO PARA 11 OF THIS RTI APPLICATION - BEFORE REJECTING ANY INFORMATION
4.Public Interest 4.1. The Information is sought in public interest
5. RTI Information Sought 5.1. The Following information is sought from the PIO, by the RTI Applicant Audits and Consultants PIO to provide the details of the audits carried out w.r .t. the KASEZ operations (in the last 7 years, BESIDES THE STATUTORY AUDITS UNDER APPLICABLE STATUTES, as under:
Nature and Type of Audit (Energy/Efficiency/Internal/Safety/Insurance/Environmental /CAG / Hazardous Cargo etc) Date of Audit Period covered by the Audit Name of Auditor Scope of Audit PIO to provide the details of the Management Consultants engaged for KASEZ operations (In India and overseas - including subsidiaries and JV),in the last 7 years, BESIDES IT Consulting assignments, as under:
Nature and Type of Consulting assignment (STRATEGY/ BANK FINANCE, OPERATIONAL IMPROVEMENT/ Energy/Efficiency/Internal/Safety/Insurance/ Environmental /CAG / Hazardous Cargo etc) Date of Consulting assignment Period covered by the Consulting assignment Name of Management Consultant Scope of Consulting assignment 14 Private Sector Benchmarking PIO to confirm that the KASEZ has engaged any 3 rd party or agency to benchmark the financial and operational performance of KASEZ with the private sector or Government owned entities in the SEZ business in India and overseas, in the last 7 years, as under:
If Yes, the date of such engagement, name of the agency or Team, scope of work of the said engagement and fees paid to the said agency PIO to confirm that the MINISTRY OF COMMERCE has engaged any 3 rd party or agency to benchmark the financial and operational performance of KASEZ with the private sector or Government owned entities in the SEZ business in India and overseas, in the last 7 years, as under:
If Yes, the date of such engagement, name of the agency or Team, scope of work of the said engagement and fees paid to the said agency PIO to confirm that ANY GOVERNMENT OR PRIVATE ENTITY has engaged any 3 rd party or agency to benchmark the financial and operational performance of KASEZ with the private sector or Government owned entities in the SEZ business in India and overseas, in the last 7 years, as under: If Yes, the date of such engagement, name of the agency or Team, scope of work of the said engagement and fees paid to the said agency PIO to confirm if the KASEZ has done a benchmarking of the financial and operational performance of KASEZ , in the SEZ business in India and overseas, in the last 5 years, as under:
If Yes, the date of such engagement, name of the KASEZ Team,scope of work of the said engagement PIO to confirm if the MINISTRY OF COMMERCE has done a benchmarking of the financial and operational performance of KASEZ , in the SEZ business in India and overseas, in the last 5 years, as under:
If Yes, the date of such engagement, name of the KASEZ Team,scope of work of the said engagement KASEZ Sources of Income PIO to provide the schedule of OPERATIONAL INCOME (excluding investment income - by types of income streams in the last 5 years, detailing each type of income stream which amounts to 5% or more of the ANNUAL OPERATIONAL INCOME (representatively illustrated, as under): Land Charges Lease Charges Power Charges 15 Water Charges Facilities Charges Levies for AC units etc Recoveries for ETP etc Recoveries for Common Facilities Recoveries for Administrative Facilities Others (PIO is free to modify this list - as it is meant to be representative) Annual Report, Accounts and APR (this information should be in the public domain - free of cost) PIO to provide the Annual Report of KASEZ for the last 3 years with the Auditors Report, Financial Statements, Notes to Accounts, Directors Report etc PIO to provide the Annual PERFORMANCE Report of KASEZ for the last 3 years PIO to confirm that it has the annual reports of the Developers and Co- Developers of KASEZ. If Yes, the PIO to provide the references of the FY w.r.t which it has the Annual reports PIO to confirm that it has the summary of the annual performance of the Developers and Co-Developers of KASEZ If Yes, the PIO to provide the references of the FY w.r.t which it has the said summary of the annual performance Equity Investments by KASEZ / Developers (since inception of the KASEZ ) PIO to confirm if KASEZ has made any EQUITY investments in any unit operating in the KASEZ If Yes, the PIO to provide the name of the investee and the amount of the investment PIO to confirm if KASEZ has made any EQUITY investments in any ANCILLARY SERVICES PROVIDER (BANK/CHA/LOGISTICS PROVIDER/ POWER PLANT/ETP ETC) operating in the KASEZ If Yes, the PIO to provide the name of the investee and the amount of the investment.
PIO to confirm if THE DEVELOPERS OF THE KASEZ have made any EQUITY investments in any unit operating in the KASEZ If Yes, the PIO to provide the name of the investee and the amount of the investment PIO to confirm if THE DEVELOPERS OF THE KASEZ have made any EQUITY investments in any ANCILLARY SERVICES PROVIDER (BANK/CHA/LOGISTICS PROVIDER/ POWER PLANT/ETP ETC) operating in the KASEZ 16 If Yes, the PIO to provide the name of the investee and the amount of the investment PIO to confirm if KASEZ has made any LOANS/ADVANCES in any unit operating in the KASEZ If Yes, the PIO to provide the name of the investee and the amount of the investment. PIO to confirm if KASEZ has made any LOANS/ADVANCES in any ANCILLARY SERVICES PROVIDER (BANK/CHA/LOGISTICS PROVIDER/POWER PLANT/ETP ETC) operating in the KASEZ If Yes, the PIO to provide the name of the investee and the amount of the investment PIO to confirm if THE DEVELOPERS OF THE KASEZ have made any LOANS/ADVANCES in any unit operating in the KASEZ If Yes, the PIO to provide the name of the investee and the amount of the investment PIO to confirm if THE DEVELOPERS OF THE KASEZ have made any LOANS/ADVANCES in any ANCILLARY SERVICES PROVIDER (BANK/CHA/LOGISTICS PROVIDER/ POWER PLANT/ETP ETC) operating in the KASEZ If Yes, the PIO to provide the name of the investee and the amount of the investment Units (this information should be in the public domain - free of cost) PIO to provide the number of non-operational units as of 1st July,2019 and their names PIO to provide the number and names of the loss making units in the SEZ (financial loss - not loss as computed under the IT Act) PIO to provide the number and names of the SERVICE INDUSTRY units in the SEZ (ALONGWITH THE SERVICE INDUSTRY TYPES) PIO to provide the names of the units in the Gems and Jewellery industry as of 1st July, 2019 PIO to confirm that it has the financial statements of ALL the units of the KASEZ If Yes, the PIO is to indicate that the said statements are as of which date or FY If Yes, the PIO is to indicate that the said statements are available in e-format PIO to confirm that it has the summary of the financial performance (NOT THE NFE) of ALL the units of the KASEZ If Yes, the PIO is to indicate that the said summaries, are as of which date or FY If Yes, the PIO is to indicate that the said statements are available in e-format 17 PIO to confirm that it can provide the ITCHS tarriff codes of the material and spares items and goods and services exported from the KASEZ PIO to confirm that it can provide the ITCHS tarriff codes of the material and spares items and goods and services exported by each KASEZ Unit from the KASEZ Exim (this information should be in the public domain - free of cost) PIO to provide the aggregate NON CAPITAL GOODS imports made into the SEZ in each of the last 7 years PIO to provide the aggregate CAPITAL GOODS imports made into the SEZ in each of the last 7 years PIO to provide the aggregate DIRECT PHYSICAL EXPORTS made FROM the SEZ in each of the last 7 years PIO to provide the aggregate DIRECT SERVICES EXPORTS made FROM the SEZ in each of the last 7 years PIO to provide the aggregate DIRECT PHYSICAL EXPORTS made FROM EOUs DOING CMT OR JOB WORK FOR SEZ units in each of the last 7 years PIO to provide the aggregate DEEMED EXPORTS made FROM the SEZ in each of the last 7 years PIO to provide the aggregate DEEMED EXPORTS RELATED TO the SEZ in each of the last 7 years PIO to provide the aggregate value of sales from the SEZ into the DTA, in each of the last 7 years Raids PIO to provide the number of cases of raids by the DRI/ED/Income Tax and Customs on the SEZ or the SEZ Units in the last 3 years PIO to provide the names of the units in the SEZ against whom proceedings have been initiated by the DRI/ED/Income Tax and Customs in the last 5 years SEZ Units facing Criminal Prosecution PIO to provide the names of the KASEZ units facing Criminal Prosecution proceedings from the DRI/ED/ Customs or the Income Tax department as at 31st March,2019 (irrespective of whether or not the KASEZ Units have contested the DRI process in the Courts or otherwise) Litigations PIO to provide the number of ongoing legal cases in Indian Court, in which KASEZ is a plaintiff/ defendant/petitioner/ respondent , as at 1st July,2019 PIO to provide the number of ongoing legal cases in Arbitration proceedings, in which KASEZ is a plaintiff/ defendant/petitioner/ respondent , as at 1st July,2019 18 PIO to provide the coordinates of ongoing legal cases (counter parties, case number and the court particulars) in Indian Court, in which KASEZ is a plaintiff/ defendant/petitioner/ respondent , as at 1st July,2019 PIO to provide the coordinates of ongoing legal cases cases (counter parties and the Arbitrator particulars)in Arbitration proceedings, in which KASEZ is a plaintiff/ defendant/petitioner/ respondent , as at 1st July,2019 Vigilance PIO to provide the number of cases wherein an FIR has been registered or an enquiry conducted by any agency or department, on a staff of the KASEZ ,on a matter related to corruption -
whether or not under the PC Act - AT ANY TIME IN THE LAST 7 YEARS PIO to provide the NAMES OF THE KASEZ STAFF, wherein an FIR has been registered or an enquiry conducted by any agency or department, on a staff of the KASEZ , on a matter related to corruption - whether or not under the PC Act - AT ANY TIME IN THE LAST 7 YEARS The CIC observes that the appellant has repeatedly cited case laws relating to every aspect of the RTI Act in his RTI application and appeal. Further, he kept on submitting submissions after submissions. This is absolutely incorrect on the part of the applicant. As mentioned earlier also he should be careful and give regard to the provisions of the RTI Rules 2012. Moreover, he should understand that citing case laws without justifying its relevance to the present RTI application is a futile exercise.
Based on a perusal of the record it was noted that the CPIO vide letter dated 19.08.2019 claimed Rs 244 as photocopying charges for 122 pages. Thereafter, the CPIO vide letter dated 28.08.2019 provided the index of total pages for which the photocopying charges was sought in response to appellant's letters and e-mail. However, a subsequent revised point-wise reply was given to the appellant accepting his contentions in letter dated 29.08.2019. The FAA vide order dated 30.09.2019 directed the CPIO to transfer points no. 2,4,5 and 8 of the RTI application to the concerned public authorities within 30 days.
The CPIO accordingly has transferred the same to different public authorities vide letter dated 03/10/2019.
In so far as Sec 4 disclosure is concerned, the Commission cannot entertain the same plea in this appeal as the appellant has mixed all his queries in one RTI application with a single point no. 5 and the sub topics were not even 19 numbered, so it is difficult to identify which are applicable for suo moto disclosure and which not.
It is also very crucial to mention here that the Commission heard 14 cases of the appellant on 05.08.2020 and in each of the cases it is not possible to go through the written submissions of the appellant word by word, his second appeals/complaints, his RTI applications, first appeals etc.as all this material submitted were extremely lengthy and technical. Therefore, the Commission went in depth in the present case to address all the issues and contentions raised by the appellant. Moreover, the same issues and contentions if made in the later cases i.e case nos 652942, 653462 and 653434 shall not be discussed again to avoid repetition and to save time and resources of the Commission. In the present case he raised two major issues first that the CPIO had not transferred the RTI application u/s 6(3) of the RTI Act and secondly the CPIO erred in denying some of the information sought u/s 8 (1)(d) of the RTI Act. One of the major issues found in the contentions of the applicant was that, he was not specific about the points regarding which ones he is contesting, but he again just mentioned the lengthy information sought.
The CPIO vide e-mail submitted certain documents which contain Sec 6(3) letters. The first letter is F No. KASEZ/RTI/31/2019-20/7663-66 dated 03.10.2019 when it was verified it was noted that the same is related to the present RTI application as the same was done in compliance with the order of FAA dated 26.09.2019. It is further relevant to mention that the transfer u/s 6(3) was done by Shri Arun Kumar, Deputy Commissioner of Customs or 1. CPIO, Kandla Special Economic Zone to the CPIO, SEZ division, Department of Commerce, Ministry of Commerce and Industry 2. The DDC KASEZ Authority Secretariat, KASEZ, Gandhidham in respect of points no. 2,4,5 and 8 of the RTI application. (verify the RTI dated 06.08.2019). The second letter is F No. KASEZ/RTI/31/2019-20/7668-71 dated 03.10.2019 when it was verified it was noted that the same is related to the present RTI application as the same was done in compliance with the order of FAA dated 26.09.2019. It is further relevant to mention that the transfer u/s 6(3) was done by Shri Arun Kumar, Deputy Commissioner of Customs or 1. CPIO, Kandla Special Economic Zone to the CPIO, SEZ division, Department of Commerce, Ministry of Commerce and Industry 2. The DDC KASEZ Authority Secretariat, KASEZ, Gandhidham in respect of points no. 2,4,5 and 8 of the RTI application. (verify the RTI dated 06.08.2019).
20The third letter is F No. KASEZ/RTI/31/2019-20/7672-76 dated 03.10.2019 when it was verified it was noted that the same is related to the present RTI application as the same was done in compliance with the order of FAA dated 26.09.2019. It is further relevant to mention that the transfer u/s 6(3) was done by Shri Arun Kumar, Deputy Commissioner of Customs or 1. CPIO, Kandla Special Economic Zone to the CPIO, SEZ division, Department of Commerce, Ministry of Commerce and Industry 2. The DDC KASEZ Authority Secretariat, KASEZ, Gandhidham 3. The Accounts Officer, KASEZ, Gandhidham in respect of points no. 2,4,5 and 8 of the RTI application. (verify the RTI dated 06.08.2019).
The fourth letter is F No. KASEZ/RTI/31/2019-20/7651-62 dated 03.10.2019 when it was verified it was noted that the same is related to the present RTI application as the same was done in compliance with the order of FAA dated 26.09.2019. It is further relevant to mention that the transfer u/s 6(3) was done by Shri Arun Kumar, Deputy Commissioner of Customs or 1. The CPIO Directorate of Enforcement Headquarter Office 2. The CPIO DRI Headquarters
3. The CPIO RTI Cell (CBDT) Department of Revenue, Ministry of Finance 4. The CPIO RTI Cell (CBIC), Department of Revenue, Ministry of Finance in respect of points no. 2,4,5 and 8 of the RTI application. (verify the RTI dated 06.08.2019). In view of the above letters, the Sec 6(3) transfer contentions of the appellant failed to subsist at this point of time. However, the appellant may point out that Sec 6(3) transfer was not done within 5 days. In view of the same it is important to draw his attention to the multiple queries he asked from varied sub topics and apparently which were related to more than one public authority, therefore, here it is justifiable that the delay occurred and which was not deliberate as all as the CPIO in the first reply offered the documents whatever was readily available with him on payment of photocopying charges. Moreover, the CPIO's plea that under Para 2 of DoPT OM No. NO.10/2/2008- IR dated 12.06.2008, the obligation to address the RTI application to the Concerned Public Authority under Section 6(1) of RTI Act, 2005 is on the RTI applicant itself and PIO is under no obligation to transfer the RTI application to multiple department/public authorities is also relevant. Furthermore, a copy of the reply dated 29.10.2019 given by the CPIO, CBIC was perused in which the CPIO replied as follows:
"2. In this regard, with respect to point no. 8 of your RTI application, it is stated that the information sought pertains to the office of Chief 21 Commissioner of Customs, Gujarat Zone which has already been forwarded to them by Under Secretary, CX-9 Department of Revenue. Hence it is stated that information in respect of the above point may be treated as NIL at our end."
A copy of the reply dated 21.10.2019 given by the CPIO, Office of the Development Commissioner, Kandla Special Economic Zone, Ministry of Commerce and Industry, Gandhidham Kutch was perused in which the following reply was given:
"RTI application dated 06.08.2019 was transferred to Estate Management section of Kandla Special Economic Zone for providing the information, in respect of points no. 2,4 & 5 u/s 6(3) of the RTI Act . The information pertaining to Estate Management section in respect of points no. 2, 4 & 5 is enclosed herewith."
A copy of the reply dated 24.10.2019 given by the CPIO, Ministry of Commerce & Industry, Department of Commerce (SEZ Section) was perused in which the following reply was given:
"Point no.2 : No such third party or agency has been engaged to benchmark the financial and operational performance of KASEZ. Every Authority is liable to Accounts and Audit under Sec 37 of the SEZ Act, 2005. The units are required to achieve positive Net Foreign Exchange Earnings in terms of Rule 53 of the SEZ Rules and there is a provision of monitoring of performance of the unit by the approval Committee in terms of Rule 54 of the SEZ Rules as amended from time to time. The Act and rules may be referred to in the website: sezindia.nic.in. (Homepage- >GoI Acts/Policies->SEZ Act/SEZ Rules & Amendments). Points 4&5 : Information not held by this CPIO."
A copy of the reply dated 16.10.2019 given by the CPIO, Kandla Special Economic Zone, Ministry of Commerce and Industry was perused in which the following reply was given:
"5. Equity investments by KASEZ/Developers (since inception of the KASEZ)
a) PIO to confirm If KASEZ has made any Equity investments in any unit operating in the KASEZ-
-No. If yes, provide the name of the investee and the amount of the Investment.
-N.A 22
b) PIO to confirm if KASEZ has made any Equity investments in any Ancillary Service Provider (Bank/CHA/Logistics Provider / Power plant/ETP/etc) operating in the KASEZ.
-No If Yes, provide the name of the investee and the amount of the investment.
-N.A.
c) PIO to confirm if the developers of the KASEZ have made any Equity investments in any unit operating in the KASEZ.
-Information related to KASEZ authority.
PIO to confirm if KASEZ has made any EQUITY investments in any ANCILLARY SERVICES PROVIDER (BANK/CHA/LOGISTICS PROVIDER/ POWER PLANT/ETP ETC) operating in the KASEZ
-Information related to KASEZ authority.
If Yes, the PIO to provide the name of the investee and the amount of the investment.
-N.A
e) PIO to confirm if THE DEVELOPERS OF THE KASEZ have made any EQUITY investments in any unit operating in the KASEZ
-No If Yes, the PIO to provide the name of the investee and the amount of the investment
-N.A.
f) PIO to confirm If KASEZ has made any Loans/Advances in any unit in any ANCILLARY SERVICES PROVIDER (BANK/CHA/LOGISTICS PROVIDER/ POWER PLANT/ETP ETC) operating in the KASEZ
-No If Yes, the PIO to provide the name of the investee and the amount of the investment
-N.A
g) PIO to confirm if the Developers of the KASEZ have made any Loans/Advances in any unit operating in the KASEZ.
-Information related to KASEZ authority.
If Yes, the PIO to provide the name of the investee and the amount of the investment
-N.A 23
h) PIO to confirm if the Developers of KASEZ have made any Loans/Advances in any ANCILLARY SERVICE PROVIDER (BANK/CHA/LOGISTICS PROVIDER/ POWER PLANT/ETP ETC) operating in the KASEZ
-Information related to KASEZ authority.
If Yes, the PIO to provide the name of the investee and the amount of the investment
-N.A"
Furthermore, the denial u/s 8(1)(d) of the RTI Act was also justified by the CPIO stating that the information was sought to provide ITCHS tariff code of the material, spare item, goods & services exported by each KASEZ Unit, which were denied under Section 8(1)(d) of RTI Act,2005 since it relates to commercial confidence, trade secrets or intellectual property and disclosure of same would harm the competitive position of third party. However, it is submitted that general description of authorised operation (viz. Manufacture/trader/warehousing unit, details of manufacturing item etc) of each KASEZ Units are already available on public domain on KASEZ website under heading "List of working Unit". Further, revealing the technical detailed information of each unit would harm their competitive position, hence they were rejected under Section 8(1)(d) of RTI Act,2005 for being commercial confidence, trade secrets or intellectual property. For example there are many pharmaceutical units under KASEZ who are manufacturing medicines and doing some research work on medicine including present pandemic COVID-19.
In the endeavour to provide relief to the appellant, the Commission went through each and every aspect raised by the appellant. However, after perusing the replies of the CPIO, the FAA's order, subsequent replies of different public authorities and the written explanations of the CPIO, the Commission is satisfied to uphold the replies and submissions of the CPIO. The appellant is also advised to avoid filing RTI applications by asking information on multiple subjects in a single RTI application, filing RTI application to a public authority when apparently the information pertains to a different public authority and causing unnecessary pressure on the respondent authority to reply.
The present appeals also fail to sustain as the Commission is not satisfied that there is any larger public interest involved. However, the blunt allegations by 24 the appellant, point towards definite tendency unerringly towards the misuse of the RTI Act by the appellant. These cases become a fit illustration for the observation of the Apex Court in Aditya Bandhopadhyay's case that -
"...The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties...."
The Commission finds no merit in both the appeals and once again advises the appellant to make judicious use of the cherished statute of the RTI Act in future.
The appeals are disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मा णत स या पत ित) A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011- 26182594 / दनांक / Date 25