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/2020/679484
Savio J F Correia ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Mormugao Port Trust,
RTI Cell, Headland, SADA,
Goa - 403804. .... ितवादीगण /Respondent
Date of Hearing : 06/01/2022
Date of Decision : 24/01/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 01/05/2020
CPIO replied on : 26/05/2020
First appeal filed on : 27/05/2020
First Appellate Authority order : 18/06/2020
2nd Appeal/Complaint dated : 26/07/2020
Information sought:
1The Appellant filed an online RTI application dated 01.05.2020 seeking the following information;
(1) Copies of all financial statements of the Gross Revenue submitted by Adani Mormugao Port Terminal Pvt Ltd from 01.04.2013 to 31.03.2020 along with certification of statutory auditors, as per clause 9.4 of the Concession Agreement.
(2) Copies of all independent audits of the above financial statements conducted by MoPT.
The CPIO denied the information to the appellant on 26.05.2020 under section 8(1)(j) of the RTI Act, 2005.
Being dissatisfied, the appellant filed a First Appeal dated 27.05.2020. FAA's order dated 18.06.2020 upheld the reply of CPIO and further held that "the arbitration is in progress, hence matter is 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 and FAA under the garb of Section 8(1)(j) of RTI Act and also that the matter is sub-judice before arbitration.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through audio-conference.
Respondent: Anant V. P. Chodnekar, Financial Advisor & Chief Accounts Officer & CPIO present through audio-conference.
The Appellant reiterated the contents of his instant Appeal as under -
I. "...The refusal of information sought by invoking sub-section 1 (j) of Sec 8 of RTI Act is misconceived and is contrary to the intent and spirit of the law that seeks to promote transparency in the functioning of the concerned public authority i.e. Mormugao Port Trust.
II. The financial statements sought by the appellant are required to be submitted by the PPP concessionaire i.e. Adani MPTL to the Concessioning Authority i.e. Mormugao Port Trust, in compliance of Clause 9.4 of the Concession Agreement dated 27.09.2009.2
III. There is no obligation on part of Mormugao Port Trust under the Concession Agreement dated 27.09.2009 to keep the said financial statements confidential and/or not to disclose them under RTI Act.
IV. The financial statements are knowingly submitted in the public domain by Adani MPTL in course of a public activity and in discharge of its contractual obligations towards the public authority under the Concession Agreement.
V. Under Clause 9.2 (a) of the Concession Agreement dated 27.09.2009, Adani MPTL is required to pay royalty @ 20% of gross revenue to Mormugao Port Trust. As a corollary, Clause 9.4 requires the Adani MPTL to submit half-yearly statements of gross revenue to Mormugao Port Trust. Hence, scrutiny of the financial statements is necessary to verify the correctness of revenue shared by the Adani MPTL with Mormugao Port Trust. The information involves public revenue payable to a public-funded major port for use and enjoyment of public property. Hence, there is distinct and unmistakable public interest in disclosure of such information.
VI. The information has been malafidely concealed and denied In common parlance, one would ascribe the adjective "personal" to an attribute which applies to an individual and not to an institution or a corporate. From this it flows that "personal" cannot be related to institutions, organizations or corporates. It is well settled by this Hon'ble Commission that Sec. 8 (1) (j) cannot be applied when the information concerns institutions, organizations or corporates.
VII. In view of dismissal of first appeal by the learned FAA inter alia on the ground of commercial confidence, it was incumbent on the FAA to give reasons and substantiate in what manner disclosure of the information would harm the competitive position of the third party.
VIII. A "trade secret" is information that is not generally known to the public; confers economic benefit on its holder because the information is not publicly known; and where the holder makes reasonable efforts to maintain its secrecy. In the present case, the information sought by the appellant has been knowingly submitted by the third party to a public authority in compliance and fulfillment of contractual obligations...."
Per contra, the CPIO invited attention of the bench towards his written submission dated 04.01.2022, relevant portion of which is as follows -3
"..the Port vide its letter no. FA/CDC/RTI/2020/08 dtd. 26.05.2020, had informed the appellant Shri. Savio Correira that the information sought by him cannot be disclosed, since it is in the nature of the personal information of the third party and the third party has denied to disclose the same and is exempted from disclosure under sub-section 1(j) of section 8 of RTI Act, 2005.
5. The Appellant preferred first Appeal before the appellate authority i.e Dy.
Chairman, Mormugao Port Trust, on 27.05.2020. The appeal filed through RTI online portal was registered under no. MPOTR/A/E/20/00002. The first appeal was dismissed by the Appellate Authority vide letter no. FA/CDC/RTI/2020/39 dtd. 18.06.2020 on the ground that disclosure of such information is likely to misused for personal interest and would harm competitive position of a third party in respect of commercial confidence, trade secrets etc. Further, it was informed that arbitration is in progress and the matter is subjudice.
6. The Appellant under point 4 : Grounds of Appeal (V) has stated that, scrutiny of financial statements is necessary to verify the correctness of revenue shared by M/s. AMPTPL with M PT. Further, the Appellant under point no. 4 (VI) has stated that the information has been malafidely concealed and denied possibly to cover up irregularities in collection of royalty from the concessionaire and failure on part of Mormugao Port Trust to conduct mandatory independent audits.
In this regard, it is informed that as per clause 9.4 of Concessionaire Agreement, the extract of which is reproduced here below :
"The Concessioning Authority shall, at its own cost, have the option to appoint another firm of Chartered Accountants duly licensed to practice in India (the "Additional Auditor") to conduct a special audit of the Gross Revenue and the financial statements, documents and supporting evidences thereto as may be mandated by the Concessioning Authority and report to the Concessioning Authority such information as may be desired by the Concessioning Authority for any period and the Gross Revenue ("Special Audit"). This shows that it is optional and not mandatory for Mormugao Port Trust to conduct the special audit. However, it is informed that despite the independent audit being optional, MPT has conducted independent special audit, since the commencement of the project of AMPTPL to ensure the correctness of revenue shared by AMPTPL with MPT. It is also informed that, the Books of Accounts of MPT are audited by 4 C&AG, which has. a full-fledged Resident Audit Office in the MPT premises itself, which audits MPT throughout the year.
7. 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 not due to any malafide intentions to cover up irregularities in collection of royalty, which is doubly audited by the Special Independent Auditor as well as the C&AG.
8. Hence in view of above, it is humbly submitted that prayers made by the appellant for imposing penalty and cost of this appeal and recommending disciplinary action against the respondents is unjust and improper..."
Decision:
The Commission remarked at the outset that a Second Appeal of the Appellant on the similar issue has already been heard by this bench bearing file no. CIC/MPORT/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 5 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."
Considering the totality of the fact and circumstances of the instant case, the aforesaid ratio is fully applicable to instant matter as well. In view of the above, no further relief can be granted in the matter.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 6