Central Information Commission
Sajith Varghese vs National Highways Authority Of India ... on 22 June, 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/2021/121759
Sajith Varghese ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
National Highway Authority
Of India, O/o the Project Director,
RTI Cell, No. 310-A, Chandranagar
Extension, Chandranagar PO, Palakkad,
Kerala - 678007. .... ितवादीगण /Respondent
Date of Hearing : 21/06/2022
Date of Decision : 21/06/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 23/02/2021
CPIO replied on : 22/04/2021
First appeal filed on : 25/03/2021
First Appellate Authority order : Not on record
2nd Appeal/Complaint dated : 09//06/2021
Information sought:
The Appellant filed an online RTI application dated 23.02.2021 seeking the following information:
"Does have any official agreement for collecting toll on Mannuthy- Edappally National Highway in Kerala? If they have, what are they? Under which conditions, they got permanent COD without the completion of work."1
Having not received any response from the CPIO, the appellant filed a First Appeal dated 25.03.2021. FAA's order, if any, is not available on record.
Subsequently, the CPIO replied to the appellant on 22.04.2021 stating as follows:-
"As per Concession Agreement dated 27.03.2006 for Design, Construction, Development, Finance, Operation & Maintenance of 4-laning of Thrissur Angamaly and Improvements. Operation & Maintenance of Angamaly Edapally section of NH47 (New No. 544) on BOT basis, the Concessionaire entitled to collect user fee once they receive Provisional Completion Certificate (PCC) with punch list works.
If the applicant wants copy of Concession Agreement, Rs. 918/- to be remitted by way of DD in favour of NHAI, Thiruvananthapuram."
Feeling 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 video-conference.
Respondent: Bipin Madhu, DGM (T) & PD-PIU & CPIO present through video- conference.
The CPIO reiterated the contents of his latest written submission dated 16.06.2022 addressed to the Appellant, relevant portion of which are as under -
".....online RTI application vide No. NHAIN/R/E/21/00731, which was not received in the RTI portal of NHAI, PIU-Palakkad. Due to non response, you have filed 1st appeal vide No. NHAIN/ A/E/21/00381 dated 25.03.2021 which was received in this office on 05.04.2021 through 1st Appellate Authority. Accordingly, information on the RTI application No. NHAIN/R/E/21/00731 and 1st appeal No. NHAIN/ A/E/21 /00381 was furnished vide this office letter No. NHAI/PIU- PKD/RTI/2021/782 dated 22.04.2021.
xxx Due to unsatisfactory response, you have raised certain new queries in the second appeal dated NIL before the Hon'ble Central Information Commission (CIC), which was received by the CIC on 09.06.2021. Subsequent to filing second appeal, this office has received new RTI applications from your end. Based on these, documents/information sought were provided to you as detailed below:-
(i) Copy of Concession Agreement dated 27.03.2006/ Supplementary Agreements dated 23.11.2009 & 03.12 .2011 pertaining to the work of 4-laning of Thrissur 2 Angamaly and Improvements, operation & maintenance from Angamaly - Edapally section of NH47 (New No.NH544) on BOT basis, vide this office letter No.NHAI/PIU- PKD/RTI/1975 dated 25.11 .2021 (copy of letter is enclosed for ready reference).
(ii) Copy of punch list works (12 items) appended in the Provisional Completion Certificate dated 04.12.2011 for the above project and its status vide this office letter No.NHAI/PIU-PKD/RTI/2021 /49 dated 11.01.2022 (copy of letter is enclosed for ready reference) .
(iii) Information related to balance punch list works and works as per supplementary agreement and details of user fee for different vehicles vide this office letter No.NHAI/PIU-PKD/RTI/2021 48 dated 11 .01.2022 (copy of letter is enclosed for ready reference).
4. Further, reply to certain new queries raised in the second appeal is furnished below:
Clause 15.1 of Concession Agreement says "the project shall be deemed to be complete and open to traffic only when the Completion Certificate or Provisional Certificate is issued in accordance with the provisions of Article XVI (the "Project Completion)". Clause 15.2 of Concession Agreement says "COD (Commercial Operation Date) of the project shall be the date on which the Independent Consultant has issued the Completion Certificate or the Provisional Certificate, as the case may be, under this Agreement and the Concessionaire shall not levy and collect any fee until it has received such Completion Certificate or the Provisional Certificate". The Independent Consultant issued Provisional Completion Certificate on 04.12.2011 which entitled the Concessionaire to collect toll fee from 05.12.2011. Hence, the Provisional Completion Certificate is valid document to commence toll collection, which is valid up to the termination of toll collection. A Public Interest Litigation (WPC No.12535/2012) was filed by Shri Girish Babu & Another before the High Court of Kerala, seeking relief to stop levying toll on the Mannuthy - Edapally stretch of NH47, before completion of the project. The Double Bench of the High Court of Kerala examined the matter and stated that "there is adequate justification for collection of tolls with the Provisional Completion Certificate, before the completion of the entire National Highway Project" and accordingly dismissed the writ petition vide judgment dated 18.03.2019 (copy enclosed for reference).
5. Please note that, this office has already provided Concession Agreement/ Supplementary agreements which describing the detailed provisions for construction, improvements, operation & maintenance of the project including toll collection and status of punch list works appended in the Provisional Completion Certificate from time to time against your RTI applications.
6. In case of not satisfactory with the aforesaid information I documents provided, it is requested that you may attend this office in person with prior appointment and to inspect the available records and take copy of concerned documents as per the provisions specified in the Right to Information Act, 2005..."
3To a query from the Commission, the Appellant affirmed the receipt of the averred reply however, he expressed his dissatisfaction to the delay so caused by the PIO in providing reply.
Decision:
The Commission at the outset considering the submission of the CPIO during hearing hereby directs him to file an affidavit with the Commission with a copy of it duly endorsing to the Appellant deposing categorically that the instant RTI Application was never received in their office on online RTI Portal. The said affidavit should reach the Commission within 15 days from the date of receipt of this order.
Notwithstanding the aforesaid, the Commission further finds no scope for any penal action against the CPIO for the delay in providing the reply for want of any malafide intent.
In view of the above, no further action is warranted in the matter.
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 / 4