Central Information Commission
J. P. Nainva vs National Highways Authority Of India ... on 7 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/NHAIN/A/2020/112289
J. P. Nainva ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
National Highways Authority of
India, Project Implementation Unit-Sawaimadhopur,
A45/ 46, Triupati Vihar, Block-A,
Chatarpura, Bundi-323001,
Rajasthan. .... ितवादीगण /Respondent
Date of Hearing : 06/01/2022
Date of Decision : 06/01/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 21/11/2019
CPIO replied on : 16/12/2019
First appeal filed on : 02/01/2020
First Appellate Authority order : 24/02/2020
2nd Appeal/Complaint dated : 11/03/2020
Information sought:
The Appellant filed an RTI application dated 21.11.2019 seeking the following information;1
The CPIO replied to the appellant on 16.12.2019 stating as follows:-2
Being dissatisfied, the appellant filed a First Appeal dated 02.01.2020. FAA's order dated 24.02.2020 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal on the ground of denial of information by the CPIO under the garb of Section 8(1)(d)/(j) of RTI Act.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through audio-conference.
Respondent: Manoj Sharma, PD/PIU & PIO present through audio-conference.
The Appellant while narrating the factual context of the RTI Application stated that he is aggrieved by the denial of information by the CPIO. He further stated that he has also filed similar RTI Applications with other Public Authorities who have very well furnished the relevant information to him. He requested the Commission to direct the CPIO to provide the relevant information.
The PIO reiterated the contents of the averred reply and FAA's order.
Decision:
The Commission upon a perusal of facts on record and after hearing submissions of both the parties is of the considered view that complete denial of information in the instant matter by the CPIO under Section 8(1)(d) and Section 8(1)(j) of RTI Act was completely inappropriate.
The essence of the nature of information that is being sought for, primarily revolves around the statements for stage of construction submitted by the contractors and the payments made thereof to them on this basis for construction of the National Highway roads which is an integral part of the activity of the public authority, at the expense of the public exchequer and should ordinarily be available in the public domain.
In this regard, attention of the parties is drawn towards a full bench decision of the Commission in File No.CIC/AT/A/2009/000964 dated 03.09.2009 on the imperativeness of transparency in similar forms of contractual agreements; the operative portion of the averred decision is reproduced hereunder:3
"17. The position taken by the respondents that the confidentiality arrangement they had entered into with the private entity as part of the PPP Agreement must be respected, the RTI Act notwithstanding, is entirely untenable. Any public document must stand the scrutiny of the RTI Act for a plea of confidentiality to be sustained.....
18. Planning Commission ⎯ which has a separate Department / Section dedicated to Public Private Partnerships and is known to have prepared the Model PPP Agreements for the Government ⎯ has categorically stated that any plea of confidentiality of those documents (PPP Agreements) was insubstantial and deserved to be rejected.
Comptroller & Auditor General of India also advised the Commission that there was no room for confidentiality in matters such as PPP Agreements.
XXX
20....Such private parties frequently win the right to participate in the PPP Agreement in open competition, or are selected for their exclusive and extra-ordinary competence in specified areas of activity. In either case, it is necessary that there is complete transparency about whether the selection of the Private Partner by the Government was made correctly and carefully and, that all aspects of the issue ⎯ environmental, social and human included ⎯ were seriously considered by the Government in making the choice. A matter of such critical importance to the country cannot be negotiated and settled behind the back of its people. The third-party cannot take recourse to the argument of its vital commercial and technical details being disclosed to its rivals for the simple reason that it is the consideration of these very details that won him the competitive bidding in the first place. It is important and crucial that the choice of the Private Partner by the Government is not cloaked in undue secrecy.
25....These Agreements would involve commitment of the Government's financial and physical resources. If PPPs were not the mode of project execution, the entire operation would then be conducted by the Government and would have been subject to the provisions of the RTI Act, and all information thereof would be disclosable. It would be vain to argue that functions which were earlier transparent when performed by Government exclusively, should become opaque now that these are to be performed through PPP. This will amount to reversal of transparency and would be antithetical to public interest.
426. It is, therefore, imperative that the PPP Agreements are made to embrace transparency rather than be kept cloaked in secrecy."
Now, adverting to the rationality of aforesaid ratio, even if 'confidentiality' is considered as the sole premise of the denial of the information in the instant case, fact remains that in a tender entered into by the Government, there is little room for advocating opacity vis-à-vis the provisions of the RTI Act.
Nonetheless, having due regard to the objection raised by the CPIO in disclosure of information, the Commission is constrained to ascribe a liberal interpretation to the contentions of the CPIO, and in doing so, Section 8(1)(d) of the RTI Act appears to be the only relevant exemption clause applicable in the facts of the instant case.
Yet, the said exemption clause does not have a square applicability when it concerns the disclosure of the contract agreement unless it contains such information disclosure of which may harm the competitive position of the third party.
Having considered the totality of the circumstances and question of law in the preceding paras, the Commission directs the CPIO to provide a revised point wise reply along with relevant available information in response to instant RTI Application after redacting such information disclosure of which may harm the competitive position/technical specification of the contractors as per Section 8(1)(d) of the RTI Act such as any details of the financial infrastructure of the contractors and/or the technical specifications adopted by the said contractor for the construction of National Highway roads. The severance of the records, wherever required, will be carried out by the CPIO in consonance with the provision of Section 10 of the RTI Act.
The information as directed above shall be provided to the Appellant free of cost by the CPIO within 15 days through speed post from the date of receipt of this order under due intimation to the Commission.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) Information Commissioner (सूचनाआयु ) 5 Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 6