Central Information Commission
Anant Gupta vs Rec Limited on 15 June, 2023
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/RECLD/A/2022/662365
Anant Gupta ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Rural Electrification Corporation Ltd.,
RTI Cell, REC World Headquarter,
Plot No. I-4, Sector 29, Gurugram,
Haryana-122007. .... ितवादीगण /Respondent
Date of Hearing : 07/06/2023
Date of Decision : 07/06/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 30/05/2022
CPIO replied on : 24/06/2022
First appeal filed on : 14/09/2022
First Appellate Authority order : 13/10/2022
Second Appeal dated : NIL
Information sought:
The Appellant filed an RTI application dated 30.05.2022 seeking the following information:1
"My request concerns a Rupee Term Loan granted by REC Ltd. to a private company engaged in the generation of thermal power at Godda. Jharkhand. The name of the company is Adani Power Jharkhand Ltd. and its CIN number is U40100012015PLCOS5448. I request you to share the following information with me:
I. Whether the company submitted a Power Purchasing Agreement to obtain the loan from REC ltd. If yes. kindly share a copy of the PPA with me.
2. Details of the person in charge of appraisal for this project. Kindly share the appraisal report prepared by said person if it is available.
3. A copy of the minutes of the board meeting where the Rupee Term Loan was approved.
4. Details about the status of the Rupee Term Loan and its Payment Schedule."
The CPIO furnished a pointwise reply to the appellant on 24.06.2022 stating as under:
"1. The Borrower Company did submit a PPA to obtain the loan. PPA is a third-party agreement with details of commercial confidence, hence the same is not being shared with the applicant while exercising Section 8(1)(d) of the RTI Act.
2. The Competent Authority of REC appraised the project. The appraisal report is an internal document of the REC with business decisions of the same in it, is not being disclosed under Section 8(1)(d) of RTI act.
3. The copy of the Board Minutes contains various business decisions and deliberations. Hence, it is not being shared with the applicant under Section 8(1)(d).
4. The account of Borrower Company is Standard."
Being dissatisfied, the appellant filed a First Appeal dated 14.09.2022. FAA's order, dated 13.10.2022, upheld the reply of CPIO.
2Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through intra-video conference.
Respondent: Vinay Kumar Kesarwani, CPIO along with Aditya Anand, APIO present through intra-video conference.
The Appellant while expressing his dissatisfaction with the CPIO's reply invited attention of the bench towards the contents of his First Appeal wherein he inter alia stated as under -
"....my query no.1 was about seeking access to document contains information of commercial confidence for the concerned parties. In this appeal, I want to focus only on query no.1 even though the respondent has not shared information in response to any of the other queries either. The requested document in query no.1, a Power Purchase Agreement between Adani Power (Jharkhand) Ltd. and Bangladesh Power Development Board, is of immense importance to estimate the total benefit accruing to the country from the commercial relationship between the two parties. The project in question, namely the 1600 MW Thermal Power Plant in Godda district of Jharkhand, is a unique project. Let me share some of its salient feature with you to illuminate my point:
1. It pollutes the Indian environment to generate power that will be transmitted to a foreign entity.
2. The coal for the project is being sourced from a foreign entity as well thereby depriving the country's coal producers from commercial benefit.
3. It draws 36 million cubic metres of water from the vulnerable Indian river Ganga for its use annually.
The reason for enumerating the above facts is to draw your attention to the environmental and economic cost or loss to the country from this project. All of this is public knowledge. In light of the same, it is important for the public to know accurate details about the economic gain accruing to the country from this project. That economic gain can only be accurately estimated by accessing the 3 PPA so that we can get some sense of the value of exports that this project will generate. The Rural Electrification Corporation, as a public sector company, ought to share a copy of this document because as a citizen I have a right to know the public good accruing from this project."
In response to Appellant's contentions, the CPIO also invited attention of the bench towards his written submission dated 05.06.2023, relevant extracts of which are reproduced below in verbatim -
"....The CPIO and the FAA authority has responded to the RTI Application and the Appeal of the Appellants respectively clarifying the fact that information sought by the Appellant is commercially confident document pertains to the Third Party e Adam Power Jharkhand which might affect the business prospects of Adam Power Jharkhand and hence, the same is exempted of same is exempted under Section 8 (1)(d) of the Right to Information Act, 2005.
2.The exemption provided under Section 8 of the RTI Act recognises the importance of safeguarding trade Secrets, proprietary data, and other commercially sensitive information, which, if disclosed, could result in significant harm to the competitive position of a Company. It is noteworthy that maintaining the integrity of this exemption is essential to encourage innovation, protect investments, and foster a healthy business environment. The information sought by the Appellant in his All Application Pertaining to the Minutes of the Board Meeting of AEC Limited for the Financial Assistant provided to Adani Power Jharkhand Limited, Appraisal Pedal and power purchase Agreement are commercially sensitive documents and cannot not be revealed to any person as it might affect the competitive position of both Respondent and Adani Power Jharkhand Limited.
3.In Nadimuddin v. CPIO IIM, decided on 19th July 2019 it has clearly been upheld by Honorable CIC that the Minutes of the Board Meeting, or similar documents cannot be disclosed to an Applicant if the same contains in it the information related to the Trade Secrets, and matter of commercial confidence which might harm the competitive position of the Organization or the tined party. The minutes of the Board meeting, the appraisal report, and status of the Rupee Term Loan in relation to the Power Project of Adani Power Jharkhand Limited sought by the Applicant from PEC pertains to the commercially confident Information not only of Adam Power Jharkhand Limited which is a Third Patty to the All Application but of also REC Limited, being a CPSE Lender. Such Minutes of the Board Meetings and 4 Appraisal Reports contain in them the internal business processes, discussions and various commercial analysis which REC Limited does for carrying out its business as NITC; also these documents contain with them various sensitive information submitted by Adam. Power Jharkhand Limited basis on which MC Limited decided to provide the Financial Assistance to Adani Power Jharkhand Limited. If such information Is shared to anybody, it can give undue advantage to the competitors of Adani Power Jharkhand Limited, which is company engaged in power production business, and also to the competitors of AEC Limited as entity involved in Financing of power protects. Al the documents and information sought by the Applicant are purely commercial documents without any public interest invoked in them.
4. In Aditya Jain v. Central Public Information Officer NMI Bharat Electronics ltd. Decision rm. CIC/CC/A/2013/003364 decided on 29.08.2017, it has been laid down. that the copy of agreements between Organization and third party cannot be revealed if that contains rates of the transaction between the contractors as it would adversely affect their competitive position as we at its prospective contracts. Also in S C Bhardwaj v IRDA CIC/MP/A/2016/001412 dated 15th December 2016 Honorable CIC has again upheld that agreement entered into by a third party and another entity (not the public organization) cannot be disclosed if the same contain in them the commercial information such as business details, indemnity clauses, fees being paid under the agreement etc 'the Loan Agreement between the RCC and the Adani Power Jharkhand Limited contains In it various commercial information such the lending rates, the repayment schedule, the details of the instalment of repayment, transaction fees paid by the Adani Power Jharkhand Limited, Jurisdiction clause, indemnity clause, events of default, covenants and warranties to be complied by the Mani Power Jharkhand Limited, the requirement of submission of various documents by the Adana Power Jharkhand prior to taking disbursement from AEC, etc. which are purely commercial conditions having no larger public interest. Similarly, the Power Purchase Agreement between Adani Jharkhand Limited and Bangladesh Power Development Boards has in it the terms of Liquidated Damages. termination Clause. provisions related to metering. maintenance of Insurance by Adam Power Jharkhand limited. Billings and Payment, Operating Procedure of the Power Plant. Documents to submitted to Adani Jharkhand Limited to the Power Purchaser. All these information contained in the Loan Agreement of Mani Power Jharkhand limited with REC, and the Power Purchase Agreement between Mani Power Thailand limited and the Bangladesh Power Development Board are matter of 5 commercial confidence and disclosure of such information might cause severe harm to the competitive position of the REC and Adana Power Jharkhand.
5.Lastly, the Appellant is asserting in his Appeal that there is public interest involved in the disclosure of the above-said documents On very vague grounds he is stating that there is an economic and environmental loss to the country because of the Power Plant. however, he has not presented any evidence to justify the fact that there Is an adverse effect on the country the Power Plant. It is noteworthy that the onus to prove that such disclosure is in larger public interest, is with the Appellant and he has not been able to prove any larger public Interest with corroborative evidence for which the exemption under Section 8(1)(d) ought to be waived as settled by Central information Commission in Kirti Azad vs. CPIO, M/o Youth Affairs and Sports (22.10.2018) (Second Appeal Me. CIC/KY/A/2016/001025)
6. In terms of the Honorable CIC notice dated 22.05.2023, an email was written to the third party i.e. Adam power Jharkhand Limited, to submit its defense an the 2nd Appeal before the CSC Adani Power Jharkhand Limited had submitted its written submission stating that the information sought by the Appellant cannot be provided and the same is exempted under section 8 (1) (d) of the RTI Act..."
A written submission filed by the authorized representative of the Third Party was also taken on record.
Decision:
The Commission upon a close scrutiny of records and after hearing submissions of the parties observes that the main premise of instant Appeal was non-disclosure of a copy of the Power Purchasing Agreement( PPA) to obtain the loan from REC ltd by Adani Power Jharkhand Limited against point no. 1 of RTI Application. In fact , here the Appellant has asked a query as to "Whether the company submitted a to obtain the loan from REC ltd. If yes. kindly share a copy of the PPA with me."
The contents of information sought by the Appellant at point no. 1 does not even conform to Section 2(f) of RTI Act; as he has sought for clarifications/inferences to be drawn by the CPIO based on his speculation. For better understanding of the mandate of the RTI Act, 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 6 CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act.
In this regard, the Appellant's attention is 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) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him...."
(Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.7
Section 2(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;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied Notwithstanding the above, the CPIO in the spirit of the RTI has responded in an elaborated manner claiming exemption of such agreement in terms of Section 8(1)(d) of RTI Act. For the sake of clarity, relevant extracts of said exemptions provide as under:
".....(d) 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;"
In this regard, it is noteworthy that the CPIO has adequately justified the denial of the information under Section 8(1)(d) of RTI Act as per the mandate of Section 19(5) of the RTI Act.
"(5) In any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the Central Public Information Officer or State Public Information Officer, as the case may be, who denied the request."
In view of the foregoing, the contentions raised by the Appellant during hearing (as mentioned in the preceding paragraphs) being devoid of merits, thus, no relief can be granted in the matter.
8However, in pursuance to clause 4 of hearing notice, the CPIO is directed to share a copy of his latest written submission free of cost with the Appellant immediately upon receipt of this order under due intimation to the Commission.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) 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 / 9