Central Information Commission
Shreya Trivedi vs Eastern Coalfields Limited on 14 September, 2021
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/ECFLT/A/2020/661635
Shreya Trivedi ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Eastern Coalfields Ltd. RTI
Cell, Sanctoria, PO-
Dishergarh, Distt. West
Burdwan, West Bengal-713333. .... ितवादीगण /Respondent
Date of Hearing : 13/09/2021
Date of Decision : 13/09/2021
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 03/09/2019
CPIO replied on : 28/09/2019
First appeal filed on : 25/10/2019
First Appellate Authority order : 04/12/2019
2nd Appeal/Complaint dated : 22/01/2020
1
Information sought:
The Appellant filed an RTI application dated 03.09.2019 seeking the following information;
1. Memorandum of Understanding / Power Purchases Agreement executed by and between Eastern Coalfields Limited (ECL) and West Bengal State Electricity-Distribution Company Limited (W.B.S.E.D.C.L) regarding supply of electricity to the various points of supply of ECL in its areas of operation executed between 15th July 2014 to 14th July, 2015 on usual charges.
The CPIO denied information to the appellant on 28.09.2019 under section 8(1)(d) of the RTI Act, 2005.
Being dissatisfied, the appellant filed a First Appeal dated 25.10.2019. FAA's order dated 04.12.2019 upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appealon the ground of wrong denial of information by the CPIO under Section 8(1)(d) of RTI Act.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through audio-conference.
Respondent: R. H. Khan Choudhary, Deputy General Manager (Personnel) & CPIO present through audio-conference.
The Appellant expressed her inability to plead her case due to medical exigencies and requested the Commission to decide her case on merits.
The CPIO reiterated the contents of his written submission dated 11.09.2021 as under -
".....that the MOU between ECL and WBSEDCL for power purchase and supply agreement was based on a public notification on 31.05.2015 issued by WBSEDCL regarding competitive tariff applicable to Asansol and Durgapur consumers. Thus, the tariff notification is already in public domain, further revised by another notification dated 08.05.2017.2
2. That, as per the provision of Open Access in Electricity Act-2003 any consumer be it an individual or any institution has the liberty to purchase power from any generating/distributing agency through agreement.
3. The modalities of power supply differ from DISCOM to DISCOM (Distribution Company) as there are many private players also operating in the field. In this respect the agreement held between WBSEDCL for sale and ECL for purchase, with specific term and condition mutually agreed upon can be treated as a trade secret.
4. That the terms in MOU also deal with transfer of load from supply agency to WBSEDCL (permitted under Open access Provision in Electricity act- 2003). Commercial aspect also lies in the agreement, which were achieved after lengthy negotiation process. As such, the agreement can be termed s confidential nature and disclosure of which would harm the commercial interest of ECL and WBSEDCL, both in this case as 'third party'.
5. The respondent also stated that the tariff, general terms & conditions regarding meter reading, contract demand, etc. are already in public domain. All the other details pertaining to modalities of payment & adjustment, modalities of energy adjustment, terms of shifting load etc. are commercial exclusive between ECL and WBSEDCL and would affect the commercial aspect which was achieved after lengthy negotiation process. As such, the agreement can be termed as confidential in nature and disclosure of which would harm the commercial interest of ECL and WBSEDCL, both in this case as 'third party'......"
Decision:
The Commission based upon a perusal of facts on record observes that complete denial of information sought i.e. copy of MOU/Power Purchase Agreement by the CPIO under the garb of Section 8(1)(d) of the RTI Act was not appropriate. Here, it is pertinent to note that Power Purchase Agreement or vice versa, agreements of such nature are based on the Public Private Partnership (PPP) model followed by the Government and is a simpliciter contract agreement. A contract agreement entered into by a public authority at the expense of the public exchequer 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.
26. It is, therefore, imperative that the PPP Agreements are made to embrace transparency rather than be kept cloaked in secrecy."
Now, adverting to the aforesaid ratio, even if 'confidentiality' is considered as the sole premise of the denial of the information in the instant case, fact remains that 4 in a contractual agreement 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 a liberal interpretation of the contentions of the CPIO, and in doing so, although Section 8(1)(d) of the RTI Act appears to be the 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 circumstances and question of law in the preceding paras, the Commission directs the CPIO to provide a copy of the MOU/Power Purchase Agreement as sought for in the RTI Application to the Appellant after redacting such information disclosure of which may harm the competitive position of the third party as per Section 8(1)(d) of the RTI Act such as inter alia any details of the financial infrastructure of the third-party firm and/or the technical specifications adopted by the said firm in the execution of the fuel supply agreement. The severance of the contents of the FSA, 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 from the date of receipt of this order under due intimation to the Commission.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 5