Central Information Commission
Prashant Singh vs Northern Railway on 4 December, 2024
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई िद ी, New Delhi - 110067
File No : CIC/NRAIL/C/2023/642549
Prashant Singh ....िशकायतकता /Complainant
VERSUS
बनाम
CPIO,
Konkan Railway Corporation Ltd., Belapur
Bhawan, Sector - 11, CBD Belapur,
Navi Mumbai - 400614 .... ितवादीगण /Respondent
Date of Hearing : 19.11.2024
Date of Decision : 03.12.2024
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
Relevant facts emerging from complaint:
RTI application filed on : 31.07.2023
CPIO replied on : 29.08.2023, 26.08.2023
First appeal filed on : Not on record
First Appellate Authority's order : Not on record
2nd Appeal/Complaint dated : Nil
Information sought:
The Complainant filed an (online) RTI application dated 31.07.2023 seeking the following information:
"1. With respect to LOA dated 20.04.2020 with respect to tender Number-
KR-PD-JK-EL-T-3-2019 having value of 288.08 Crores and LOA dated 05.06.2020 with respect to tender Number KR-PD-JK-EL-T-4-2019 having value of 320.76 Crores what percentage of work is completed till date and percentage of payment released till date.Page 1 of 9
2. What is the last extension given by Konkan Railway Corporation Limited to Piscesia Savronik JV LLP to complete the above work.
3. Please confirm whether KRCL was informed by the contractor that ICICI Bank Account No. 777705020423 of Piscesia Savronik JV LLP is an escrow Account and 89% of the Amount received from KRCL will be transferred to Savronik System India Private Limited.
4. Please confirm if the Railway is having any information of the FIR-
719/2022 registered in P.S. Vibhuti Khand, Lucknow against Mr. Kavi Nehra Designated Partner of Piscesia Savronik JV LLP, Mr. Vivek yadav and others.
5. Please confirm if the Railway is having any information of the Chargesheet filed in FIR-719/2022 by the Police and corresponding Proceeding pending before the High Court of Allahabad, Lucknow Bench.
6. Please confirm if the Railway is aware of the FIR bearing No.-
RC123201780002 dated 11.09.2017 had been registered against Savronik System India Private Limited which is the wholly owned (here 100%) subsidiary of Savronik Turkey and the Project Manager of Savronik System India Private Limited along with its Directors and other officials from the Northern Railway by the Anti Corruption Bureau of Central Bureau of Investigation, Srinagar.
Seeking Information from Northern Railways with respect to:
1. Please confirm whether the FDI Policy is applicable on the Railway contracts. Which FDI Policy is currently applicable on the Railway Contracts?
2. In case of the Joint Venture firm/LLP participating in Railway Tender, what is the sole purpose of mandating more than 51% share with the Indian Company rm after awarding of the tender. What is the meaning of share here with respect to Railway Contract? Does the word "Share" only means constitution of the Firm and Profit Sharing Ratio or does it also include Control, Power, Rights, Scope of Work and Duties also.
3. Does the contractor is allowed to sell/ transfer/ assign the 100% rights, duties and powers pertaining to a Railway Project, from an Indian Partner to a Foreign Company without approval of the Employer and Cabinet Committee on security?
4. As per the Standard Conditions of the Indian Railways, does a contractor allowed to sub- contract more than 50% of the contract to a third party.
5. Does a Foreign company or its subsidiary or its representatives (who is also a foreign resident) can have sole authority over the Railway Project in Highly sensitive areas like Jammu & Kashmir. Kindly provide the specific provisions (if any) with respect to a foreign entity taking part in the Railway Contract as a member of Joint Venture?Page 2 of 9
6. Can the payments against the Railway Project be received in an Escrow Account? What are the specific provisions for Contractor's Bank Account in Indian Railways?
7. With respect to LOA dated 20.04.2020 with respect to tender NumberKR-
PD-JK-EL-T-3-2019 having value of 288.08 Crores and LOA dated 05.06.2020 with respect to tender Number KR-PD-JK-EL-T-4-2019 having value of 320.76 Crores what percentage of work is completed till date and percentage of payment released till date.
8. What is the last extension given by Konkan Railway Corporation Limited to Piscesia Savronik JV LLP to complete the above work.
9. Please confirm whether KRCL was informed by the contractor that ICICI Bank Account No. 777705020423 of Piscesia Savronik JV LLP is an escrow Account and 89% of the Amount received from KRCL will be transferred to Savronik Sistem India Private Limited.
10. Please confirm if the Railway is having any information of the FIR719/2022 registered in P.S. Vibhuti Khand, Lucknow against Mr. Kavi Nehra- Designated Partner of Piscesia Savronik JV LLP, Mr. Vivek yadav and others.
11. Please confirm if the Railway is having any information of the Chargesheet filed in FIR-719/2022 by the Police and corresponding Proceeding pending before the High Court of Allahabad, Lucknow Bench.
12. Please confirm if the Railway is aware of the FIR bearing No.-
RC123201780002 dated 11.09.2017 had been registered against Savronik Sistem India Private Limited which is the wholly owned (here 100%) subsidiary of Savronik Turkey and the Project Manager of Savronik Sistem India Private Limited along with its Directors and other officials from the Northern Railway by the Anti Corruption Bureau of Central Bureau of Investigation, Srinagar.
The CPIO furnished a reply to the complainant on 29.08.2023 stating as under:
"The application has been transferred by Northern Railway on 08.08.2023 with reference no. USBRL/R/T/23/00026 and with remarks that application transferred under 6(3) of RTI Act for providing information. Reference to the RTI application assistance was sought under section 5/4 and thereafter section 5/5 from the office of USBRL project KRCL Jammu. Accordingly, the information furnished is attached."
The PIO/KRCL/Jammu furnished a reply on 26.08.2023 stating as under:
"Para 1: With respect to LOA dated 20.04.2020 with respect to tender Number- KR-PD-JK-EL-T- 3-2019 having value of 288.08 Crores and LOA Page 3 of 9 dated 05.06.2020 with respect to tender Number KR-PD-JK-EL-T-4-2019 having value of 320.76 Crores what percentage of work is completed till date and percentage of payment released till date. Remark: About 80% of work completed and 78% of payment released till date for both the tender work.
Para 2: What is the last extension given by Konkan Railway Corporation Limited to Piscesia Savronik JV LLP to complete the above work Remark: Last extension was granted up to 30.09.2023 for both the tender work.
Para 3 to 6:
3. Please confirm whether KRCL was informed by the contractor that ICICI Bank Account No. 777705020423 of Piscesia Savronik JV LLP is an escrow Account and 89% of the Amount received from KRCL will be transferred to Savronik Sistem India Private Limited.
4. Please confirm if the Railway is having any information of the FIR-
719/2022 registered in P.S. Vibhuti Khand, Lucknow against Mr. Kavi Nehra- Designated Partner of Piscesia Savronik JV LLP, Mr. Vivek yadav and others.
5. Please confirm if the Railway is having any information of the Chargesheet filed in FIR- 719/2022 by the Police and corresponding Proceeding pending before the High Court of Allahabad, Lucknow Bench.
6. Please confirm if the Railway is aware of the FIR bearing No. RC123201780002 dated 11.09.2017 had been registered against Savronik Sistem India Private Limited which is the wholly owned (here 100%) subsidiary of Savronik Turkey and the Project Manager of Savronik Sistem India Private Limited along with its Directors and other officials from the Northern Railway by the Anti-Corruption Bureau of Central Bureau of Investigation, Srinagar.
Para 3 to 6 Remark: The information sought is not in a material form but instead seeking clarification/confirmation of the Public Authority (Originally Ministry of Railways) about various aspects of a particular contract. As per Section 2(f) information means any material in any form. The definition of information has also been clarified by DOPT vide their letter No. 11/2/2008-IR dated 10.07.2008. Thus, the Public Authority can only make available information in material form and not create any information or supply any such information which is not in material form."
Being dissatisfied, the complainant failed to file a First Appeal.
Feeling aggrieved and dissatisfied, complainant approached the Commission with the instant Complaint.
Page 4 of 9Relevant Facts emerged during Hearing:
The following were present:-
Complainant: Not Present.
Respondent: Shri P. Chitrasen, DGM (Admn.) & CPIO and Shri Nandur Telang, Chief Safety Officer and the then PIO present through Video-Conference.
The Respondent while defending their case inter-alia submitted that vide their letter dated 26.08.2023, complete point-wise reply/information, as per the documents available on their record has been provided to the Complainant. The Respondent further stated that the queries of the Complainant are interrogatory in nature and are not available in their records in material form, therefore, it does not cover under the ambit of Section 2(f) of the RTI Act.
Decision:
The Commission based on a perusal of the facts on record observes that the core contention raised by the Complainant in the instant Complaint was non- receipt of complete and satisfactory information from the Respondent. In this regard, it was noteworthy that an appropriate reply by the Respondent has been provided vide letter dated 26.08.2023 as per the provisions of the RTI Act.
The Commission further finds that the dissatisfaction of the Complainant is bereft of merit as the RTI Application merely seeks clarifications and answers to interrogative queries to which the Respondent has suitably replied.
The Commission upon a perusal of records and perusal of nature of the information sought by the Complainant in his RTI application, he appears to have misinterpreted the scope and ambit of the RTI Act or appears largely not well acquainted with the technicalities of the Act in terms of what to ask, how to ask and most importantly, what to expect from the CPIO(s) & FAA in exercise of his right to information. In other words, the information sought in the RTI application do not strictly even conform to the provision of Section 2(f) of the RTI Act as the Appellant has raised queries or statements that are in the Page 5 of 9 form of conjecture, seeking answers to "whether" questions or requires the CPIO to form an opinion based on records or interpret the records.
In this regard, the DOPT has issued several Office Memorandums (OMs) wherein it has been categorically noted that RTI Act does not include answers to the questions like 'why' or 'whether'. The PIO cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification.
It is an admitted fact that the CPIO is only a communicator of information based on the records held in the office and hence, he cannot be expected to create information as per the desire of the Complainant. As per Section 2(f) of the RTI Act, the reasons/opinions/advises/rules can only be provided to the applicants if it is available on record of the Public Authority. The CPIO cannot create information in the manner as sought by the Appellant.
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 CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(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;.."
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 washeld as under:
Page 6 of 9"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.
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 Page 7 of 9 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) The Commission observed that the Respondent has provided factual position to the Complainant on his RTI application as per the documents available on record.
Now, being Complaints filed under Section 18 of the RTI Act, the facts of the case do not warrant any action under Section 18(2) of the RTI Act against the CPIO as it does not bear any mala fides or an intention to deliberately obstruct the access to information as alleged by the Complainant. Here, it is relevant to quote a judgment of the Hon'ble Delhi High Court in the matter of Registrar of Companies & Ors v. Dharmendra Kumar Garg & Anr. [W.P.(C) 11271/2009] dated 01.06.2012 wherein it was held:
" 61. It can happen that the PIO may genuinely and bonafidely entertain the belief and hold the view that the information sought by the querist cannot be provided for one or the other reasons. Merely because the CIC eventually finds that the view taken by the PIO was not correct, it cannot automatically lead to issuance of a show cause notice under Section 20 of the RTI Act and the imposition of penalty. The legislature has cautiously provided that only in cases of mala fides or unreasonable conduct, i.e., where the PIO, without reasonable cause refuses to receive the application, or provide the information, or knowingly gives incorrect, incomplete or misleading information or destroys the information, that the personal penalty on the PIO can be imposed...."
The Commission further observed that the Complainant has filed complaint before the Commission under Section 18 of the RTI Act and the Commission, at this stage, cannot direct the Respondent to provide information at the stage of adjudicating the complaint.
Page 8 of 9The Commission further referred to the decision of the Hon'ble Supreme Court in the case of Chief Information Commissioner and another Vs. State of Manipur & Another reported in MANU/SC/1484/2011 : AIR 2012 SC 864; wherein their Lordships have held that "the remedy for a person who had sought information and was refused information, was to make an appeal under Section 19 of the RTI Act. Their Lordships have held that the nature of power under Section 18 of the Act is supervisory in character whereas the procedure under Section 19 is an appellate procedure and a person who is aggrieved by refusal in receiving the information which he has sought for can only seek redressed in the manner provided in the statute, namely, by following the procedure under Section 19. Section 7 read with Section 19 provides a complete statutory mechanism to a person who is aggrieved by refusal to receive information. Such person has to get the information by following the aforesaid statutory provisions. Sections 18 and 19 of the Act, serve two different purposes and lay down two different procedures and provide two different remedies. One cannot be a substitute for the other. While holding so, the Hon'ble Supreme Court has clarified the position that an appeal under Section 18 of the Act cannot be filed before the Chief Information Officer. In the instant case, a complaint is filed under Section 18(1) of the Act. In the light of the judgment of the Hon'ble Supreme Court, the complaint made by the second respondent herein is not sustainable."
In view of the above, the Commission is of the opinion that there is no mala fide intention of obstructing the information to the Complainant, hence no action is warranted under section 20 of the RTI Act.
The Complaint is disposed of accordingly.
Vinod Kumar Tiwari (िवनोद कुमार ितवारी) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स ािपत ित) (S. Anantharaman) Dy. Registrar 011- 26181927 Date Page 9 of 9 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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