Gujarat High Court
Nilesh Bhogilal Dave vs The State Information Commission on 14 June, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9867 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
===================================================
NILESH BHOGILAL DAVE
Versus
THE STATE INFORMATION COMMISSION
===================================================
Appearance:
MR MJ MEHTA(5797) for the Petitioner(s) No. 1
MR SAURABH J MEHTA(2170) for the Petitioner(s) No. 1
MR SHUBHANG H SHAH(11415) for the Petitioner(s) No. 1
MR. MEET A. SHAH FOR MR AD OZA(515) for the Respondent(s)
No. 2,3
MR SHIVANG M SHAH(5916) for the Respondent(s) No. 1
===================================================
CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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NEUTRAL CITATION
C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023
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Date : 14/06/2023
ORAL JUDGMENT
1. By way of the present petition under Articles 226 and 227 of the Constitution of India, the petitioner herein has prayed for the following reliefs:
"(A) Your Lordships may be pleased to issue a writ of mandamus and or writ of certiorari or any other writ, order or direction, quashing and setting aside the impugned order dated 03.04.2021 passed by the Station Information Commission, qua the refusal of supply of information to the present Petitioner with respect to supply of information qua Form Nos. F-7 to F-9, which are the proof of eligibility of basic technical criteria of the Consultants, who were participating in the process, and further be pleased to direct the respondent, their servant, agents and subordinates to provide/ supply the information sought by the present Petitioner with respect to Form Nos. F-7 to F-9 submitted by the bidders, in his Application dated 08.02.2000;
(B) Your Lordships may be pleased to direct State Information Commission to recommend Disciplinary action under Section 20 of Right to Information Act, 2005 against the Public Information Officer and against First Appellate Authority. (C) Your Lordships may be pleased to direct State Information Commission recommending to impose Penalty of Rs.25,000/- on Public Information Officer under Section 20 of Right to Information Act, 2005 as the Public Information Officer has willfully violated the law by not furnishing the information and keeping the tender documents secret.
(D) Any other and further relief/s as the facts and circumstances of the case may require, also be granted."
2. The brief facts leading to the filing of the present petition reads thus:
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NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined 2.1. The petitioner herein has preferred an application under the Right to Information Act, 2005 (hereinafter referred to as 'the RTI Act' for short) on 08.02.2020, whereby, the petitioner demanded Form Nos. F-7 to F-9, which were submitted alongwith technical bids of 3 agencies, for 2019-20 work of Sarva Shiksha Abhyan Mission. The said Form is the proof of eligibility of basic technical criteria of the Consultants who were participating in the said Tender process. The said application dated 08.02.2020 is duly produced at Annexure-B. 2.2. The grievance of the petitioner is with respect to the information as sought for in the application, which was declined to be supplied by the respondent authority. The respondent authority i.e. the respondent no.3 by an order dated 06.03.2020 rejected the said application filed by the petitioner on the ground that the same would fall within the domain of Section 8(1)(d) r/ w. Section 11(1) of the RTI Act, and therefore, the petitioner is not entitled to receive the said information. The said order dated 06.03.2020 is duly produced at Annexure-C, page-30.
2.3. Being aggrieved by the said order passed by the Page 3 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined respondent no.3, petitioner herein preferred a First Appeal before the respondent no.2. The respondent no.2 by order dated 23.07.2020 rejected the said appeal filed by the petitioner. The said order is duly produced at Annexure-E, page-35.
2.4. Being aggrieved by the said order passed by the First Appellate Authority dated 23.07.2020, the petitioner herein preferred Second Appeal before the respondent no.1 i.e. the State Information Commission. The respondent no.1 by order dated 03.04.2021 disposed of the Appeal filed by the petitioner with certain directions.
2.5. Being aggrieved by the impugned order rejecting the application seeking information under the RTI Act, the petitioner herein by filing the present petition has prayed for the reliefs as referred herein-above.
3. Heard Mr. Shubhang H. Shah, learned advocate appearing for the petitioner.
3.1. Mr. Shah, learned advocate vehemently submitted that the orders passed by the competent authorities are against the settled position of law, as per the decision in the case of State of Page 4 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined Jharkhand and Ors. Vs. Navin Kumar Sinhga and Ors. reported in AIR 2008Jhar19 decided by the Hon'ble High Court of Jarkhand. It was submitted that the question before Court is, (i) whether the proof of eligibility for basic criteria of the Consultants which were supplied by the said bidders in the Form Nos. F-7 to F-9 would fall within the ambit of Section 8(1)(d) and Section 11 of the RTI Act; and (ii) after opening of the Tender i.e. after the Tender process is over, whether any information sought for is falling within the ambit of Section 8(1)
(d) of the RTI Act.
3.2. Placing reliance on the aforesaid submissions, it was submitted that the respondent authorities ought to have shared/ supplied/ given the said information to the petitioner herein. The tender process having been over, more particularly, the tender process having been concluded. The reliance was placed on the order passed by the Hon'ble High Court of Jarkhand in case of Navin Kumar Singha (supra), wherein, the Hon'ble High Court of Jarkhand, relying on Section 8(1)(d) directed the respondent authorities that if the tenders were invited by public authorities Page 5 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined on the basis of the tender documents, the eligibility of a tender or a bidder is decided, then those tender documents cannot be kept secret, that too, after the tender is decided and work order is issued on the ground that it will amount to disclosure of tender secret or commercial confidence. If the authorities of Government refuse to disclose the document, the very purpose of the Act will be frustrated.
3.3. It was also submitted that the said order passed by the Hon'ble High Court of Jarkhand has been confirmed by the Hon'ble Supreme Court in Special Leave to Appeal (Civil) No. 18030 of 2007 dated 05.10.2007. Placing reliance on the same, it was submitted that the petition be allowed and the information sought for by the petitioners, be parted by the respondents to the petitioner.
4.1. Per contra, Mr. Mr. Meet A. Shah, learned advocate for Mr. A.D. Oza, learned advocate appearing for the respondent nos.2 and 3 placed reliance on the affidavit-in-reply filed by the respondent no.2 and placing reliance on the same, it was submitted that, pursuant to the application filed by the petitioner Page 6 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined herein dated 08.02.2020, wherein, information with regard to copies of Form Nos. F-7 to F-9, which was submitted by 3 agencies, who have participated in the tender process with regard to appointment of agency for 'Third Party Inspection' undertaken by the office of the Samagra Shiksha. The respondent no.2 herein had invited objections, pursuant to the application which was filed by the petitioner herein, wherein, some information were sought for qua 3 agencies who participated in the tender process in accordance with Section 11 of the Act.
4.2. Mr. Meet Shah, learned advocate has placed reliance on the objections filed by the third parties, wherein, it was objected by the third parties to share the said information, which is duly produced at page-86. It was submitted that the respondent no.2 herein had followed due process of law, however, third parties objected to parting with the said information, and therefore, the said information was declined to the petitioner herein.
4.3. It was submitted that the reliance which was placed by the petitioner on the decision of the Hon'ble High Court of Page 7 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined Jarkhand in the case of Navin Kumar Sinhga (supra) is not applicable in the present case, in view of the fact that, in the said decision, the tender process was only for one year, however, in the present case, the tender process is recurring every year, and therefore, it would be actually a trade secret and parting of such information would affect the tender process of the next yearn also. Further, it was also submitted that the third parties, whose information was prayed for and when the same was objected by the third parties to part with the said information, the respondent herein to refuse to part with the said information under the provisions of Section 11 (1) and 11(2) of the RTI Act. 4.4. It was submitted that the information as was available on the website, the tender process was undertaken through N- PROCURE and the information which was required was for the purpose of the knowledge of the public at large was available on the website and which was already parted with the petitioner herein.
4.5. Placing reliance on the aforesaid submissions, it was submitted that, the present petition may not be entertained, in Page 8 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined view of the fact that the information which is prayed for by the petitioner herein of third parties' information, wherein, the third parties' have already raised objection with regard to parting with such information to the petitioner.
5.1. Mr. Shivang Shah, learned advocate appearing for the respondent no. 1 has submitted that, no error could be said to have been committed by the respondent authorities in declining the information as prayed for by the petitioner herein. 5.2. Mr. Shivang Shah, learned advocate submitted that, as whatever information was within the public domain, was permitted to be given to the petitioner herein, however, the other information which was sought for by the petitioner, pertaining to the private information i.e. tender process and the documents, which were produced before the respondent authority and that being third party's information could not have been parted with the petitioner, in absence of the consent of the party. Reliance was placed by Mr. Shah, learned advocate on Section-8 (1)(d) r/w. Section 11(1) of the RTI Act to substantiate his submission.
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NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined 5.3. Mr. Shivang Shah, learned advocate has placed reliance in the case of Canara Bank v/s. C.S. Shyam and Ors. reported in AIR 2017 SC 4040 (relevant para-14) and in the case of R.K. Jain v/s. Union of India (UOI) and. Ors. reported in (2013) 14 SCC 794, (relevant Paras-13, 16 and 17), the decision rendered in the case of Girish Ramchandra Deshpande v/s. Cen. Information Commr. & Ors. decided by the Hon'ble Supreme Court in Special Leave Petition (Civil) No. 27734 of 2012 (relevant para-12) and in the case of Central Public Information Officer, Supreme Court of India v/s. Subhash Chandra Agarwal reported in (2020) 5 SCC 481, (relevant paras -260 to 265) 5.4. Placing reliance on the aforesaid decisions/ judgments, Mr. Shivang Shah, learned advocate submitted that the information pertains to the third parties and if the same does not involve larger public interest, the same is not to be disclosed, more particularly, private party having objected to parting with the said information with the petitioner, the respondent was not in a position to part with the said information to the petitioner.
6. Having heard the learned advocates appearing for the Page 10 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined respective parties, the petitioner herein filed an application dated 08.02.2020 seeking the information, duly produced at Annexure-B to the petition. The following information was prayed for by the petitioner by the said application, which reads thus:
"1. Form no F-7 to F-9 which submitted along with technical bids of following agencies for the only those packages of 2019- 20 works of SSA where following agencies are call for negotiation:
1. Shrey Consultancy Services
2. Key Stone Infrastructures
3. Shreeji Consultants."
7. The respondent authorities have concurrently held against the petitioner on the ground that the information pertaining to the private information with regard to the third parties. Pursuant to the application seeking said information, the respondent no.2 under the provisions of Section 11(d) of the RTI Act, called for the objections from the respective parties and the private parties had objected to parting with the said information. The said communication is duly signed by the respective stake- holders, the relevant para reads thus:
"...Taking into consideration the entire facts as stated above, we humbly request you not to provide details sought by the person who seeks such details. We have strong objection for the same. If the information is furnished for the reasons unknown and if any business related or any Page 11 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined other loss is caused to us, you shall be solely responsible for the same. Moreover, if we are roped in an unnecessary dispute or we are compelled to take the help of the Court, it would be a matter of grief and the entire responsibility shall also be yours. In view of the above facts, we hope that you will consider our legitimate demands."
8.1. The respondent No.3 passed the following order on 06.03.2020, which reads thus:
"Your application dated 08/02/2020 seeking information under the Right to Information Act, 2005 has been received by this office on 10/02/2020.
Apropos the subject and reference cited above, it is respectfully stated that, the information sought by you being exempted from disclosure under section 8(d) and section 11(1) of the Right to Information Act, 2005 cannot be disclosed.
In case of aggrieved by the above decision, you may appeal to the Appellate Authority, Additional State Project Director, Sarva Shiksha Abhiyan, Sector-17, Gandhinagar-382017, Tel. No.2323813 within 30 days from the receipt of the decision."
8.2. The respondent no.2 passed the following order on 23.07.2020, which reads thus:
"The applicant has sought information regarding Form No.7 to Form No.9 of the agencies vide his RTI application dated 08/02/2020. Since it is private and confidential information of the agencies, it cannot be disclosed even under the RTI Act. Further, as stated in Point No.4 above, as per the reply given to the applicant in the earlier RTI application in this connection, the decision of the Information Officer is appropriate. Thus, the first appeal dated 09/03/2020 filed by the appellant under section 19(1) of the Right to Information Act, 2005 is dismissed."Page 12 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023
NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined 8.3. The respondent No. 1- State Information Commission passed the following order on 03.04.2021, relevant paras of the said order reads thus:
"3. During the hearing, it was submitted by the Public Information Officer and Samagra Shiksha Officer, Office of the State Project Director, Sarva Shiksha Abhiyan Mission, Gandhinagar that, an information pertaining to Form No.F-7 to Form No.F-9 of the three agencies engaged for the work of 2019-20 was sought vide the application dated 08/02/2020 in Form-A by the appellant. The appellant submitted in it that, the whole process related to tender is completed. Therefore, there is no possibility of any adverse effect on the tender process upon supplying the information sought at this stage. In this connection, the appellant has submitted that, the details of the points, on the basis of which eligibility of the tenderer builder is decided cannot be kept confidential and the said information is liable to be disclosed. In this connection, the appellant was informed vide the letter dated 06/03/2020 of the Public Information Officer that, the information sought by him is exempted from disclosure under section 8(d) and section 11(1) of the Right to Information Act, 2005. The appellant filed the first appeal on 09/03/2020. The order dated 11/09/2020 in connection with the first appeal shows that the appellant has sought information of Form No.F-7 to Form No.F-9 of the agencies. Since it is private and confidential information of the agencies, it cannot be disclosed if an application under RTI is filed by a third party. Thus, the first appeal of the appellant is not allowed.
4. During the hearing, the Public Information Officer clarified that, Form No.F-7 to Form No.F-9 of a builder contain details of manpower-staff functioning in the concerned company, which is a private matter of the company. This is an information which includes commercial confidence, trade secret and intellectual property, the disclosure of which would harm the competitive position of the third party. Thus, as per section 8(d) of the Right to Information Act, 2005, such information is not liable to be disclosed.Page 13 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023
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5. The appellant submitted that, in this connection, he has approached the Hon'ble Gujarat High Court also. Despite it, at this stage, the Public Information Officer is ordered to examine as to which details are included in Form No.F-7 to Form No.F-9 and whether disclosure of the same would harm the competitive position of the third party or not and to supply a proper pointwise reply to the appellant free of cost through Registered Post A.D. within 15 days.
6. As no further proceeding is expected with respect to the present appeal, the second appeal filed by the appellant stands disposed of."
9. At this stage, it is apposite to refer Section 8 and 11 of the Right to Information Act, 2005, which reads thus; Section 8. Exemption from disclosure of information.-- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,--
(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
(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;
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
(f) information received in confidence from foreign government;
(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or Page 14 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined assistance given in confidence for law enforcement or security purposes;
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;
(j) information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person. (2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-
section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. (3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information relating to any occurrence, event or matter which has taken place, occurred or happened twenty years before the date on which any request is made under section 6 shall be provided to any person making a request under that section:
Provided that where any question arises as to the date from which the said period of twenty years has to be computed, the decision of the Central Government shall be final, subject to the usual appeals provided for in this Act.
Section 11. Third party information.--
(1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may Page 15 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party.
(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-
section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.
(3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party.
(4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.
10. POSITION OF LAW:
10.1. In the case of Canara Bank v/s. C.S. Shyam and Ors.
reported in AIR 2017 SC 4040, relevant para-14 reads thus:
"14. In our considered opinion, the aforementioned principle of law applies to the facts of this case on all force. It is for the reasons that, firstly, the information sought by Respondent No.1 of individual employees working in the Bank was personal in nature; secondly, it was exempted from being disclosed under Section 8(j) of the Act and lastly, neither Page 16 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined Respondent No.1 disclosed any public interest much less larger public interest involved in seeking such information of the individual employee and nor any finding was recorded by the Central Information Commission and the High Court as to the involvement of any larger public interest in supplying such information to Respondent No.1."
10.2. In the case of R.K. Jain v/s. Union of India (UOI) and. Ors. reported in (2013) 14 SCC 794, relevant Paras-13, 16 and 17 reads thus:
"13. On the other hand Section 11 deals with third party information and the circumstances when such information can be disclosed and the manner in which it is to be disclosed, if so decided by the Competent Authority. Under Section 11(1), if the information relates to or has been supplied by a third party and has been treated as confidential by the third party, and if the Central Public Information Officer or a State Public Information Officer intends to disclose any such information or record on a request made under the Act, in such case after written notice to the third party of the request, the Officer may disclose the information, if the third party agrees to such request or if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party. Section 11(1) is quoted hereunder:
"Section 11 - Third party information.- (1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third Page 17 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party."
16. Recently similar issue fell for consideration before this Court in Girish Ramchandra Deshpande v. Central Information Commissioner and others reported in (2013) 1 SCC 212. That was a case in which Central Information Commissioner denied the information pertaining to the service career of the third party to the said case and also denied the details relating to assets, liabilities, moveable and immovable properties of the third party on the ground that the information sought for was qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. In that case this Court also considered the question whether the orders of censure/punishment, etc. are personal information and the performance of an employee/officer in an organization, commonly known as Annual Confidential Report can be disclosed or not. This Court after hearing the parties and noticing the provisions of RTI Act held:
"11. The petitioner herein sought for copies of all memos, show- cause notices and censure/punishment awarded to the third respondent from his employer and also details viz. movable and immovable properties and also the details of his investments, lending and borrowing from banks and other financial institutions. Further, he has also sought for the details of gifts stated to have been accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is: whether the abovementioned information sought for qualifies to be "personal information" as defined in clause (j) of Section 8(1) of the RTI Act.
12. We are in agreement with the CIC and the courts below that the details called for by the petitioner i.e. copies of all memos issued to the third respondent, show-cause notices and orders of censure/punishment, etc. are qualified to be personal information as defined in clause (j) of Section 8(1) of the RTI Act. The performance of an employee/officer in an organisation is primarily Page 18 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined a matter between the employee and the employer and normally those aspects are governed by the service rules which fall under the expression "personal information", the disclosure of which has no relationship to any public activity or public interest. On the other hand, the disclosure of which would cause unwarranted invasion of privacy of that individual. Of course, in a given case, if the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information, appropriate orders could be passed but the petitioner cannot claim those details as a matter of right.
13. The details disclosed by a person in his income tax returns are "personal information" which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act, unless involves a larger public interest and the Central Public Information Officer or the State Public Information Officer or the appellate authority is satisfied that the larger public interest justifies the disclosure of such information.
14. The petitioner in the instant case has not made a bona fide public interest in seeking information, the disclosure of such information would cause unwarranted invasion of privacy of the individual under Section 8(1)(j) of the RTI Act.
15. We are, therefore, of the view that the petitioner has not succeeded in establishing that the information sought for is for the larger public interest. That being the fact, we are not inclined to entertain this special leave petition. Hence, the same is dismissed."
17. In view of the discussion made above and the decision in this Court in Girish Ramchandra Deshpande(supra), as the appellant sought for inspection of documents relating to the ACR of the Member, CESTAT, inter alia, relating to adverse entries in the ACR and the 'follow up action' taken therein on the question of integrity, we find no reason to interfere with the impugned judgment passed by the Division Bench whereby the order passed by the learned Single Judge was affirmed. In absence of any merit, the appeal is dismissed but there shall be no order as to costs."
10.3. In the case of Girish Ramchandra Deshpande v/s. Page 19 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023
NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined Cen. Information Commr. & Ors. decided by the Hon'ble Supreme Court in Special Leave Petition (Civil) No. 27734 of 2012, relevant para-12 reads thus:
"12. The petitioner herein sought for copies of all memos, show cause notices and censure / punishment awarded to the third respondent from his employer and also details viz. Movable and immovable properties and also the details of his investments, lending and borrowing from Banks and other financial institutions. Further, he has also sought for the details of gifts stated to have accepted by the third respondent, his family members and friends and relatives at the marriage of his son. The information mostly sought for finds a place in the income tax returns of the third respondent. The question that has come up for consideration is whether the above-mentioned information sought for qualifies to be "personal information" as defined in clause (j) of Section 8 (1) of the RTI Act."
10.4. In the case of Central Public Information Officer, Supreme Court of India v/s. Subhash Chandra Agarwal reported in (2020) 5 SCC 481, relevant paras -260 to 265 reads thus:
"260. Sections 2(n) and 11 of the RTI Act read as under:
"2(n) "third party" means a person other than the citizen making a request for information and includes a public authority"
"11. Third party information.--(1) Where a Central Public Information Officer or a State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third Page 20 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests of such third party. (2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. (Emphasis supplied)
261. The definition of a "third party" includes a public authority. "Third party information" is information which "relates to or has been supplied by any other person (including a public authority) other than the information applicant and has been treated as confidential by such third party. Where disclosure of "third party information" is sought, and such information has been prima facie treated as confidential by the third party in question, the procedure under Section 11 of the RTI Act is mandatory. The Information Officer shall, within five days of receiving the request for "third party information" notify the relevant third party to whom the information relates or which had supplied it. The notice shall invite the third party to submit reasons (in writing or orally) as to whether or not the information sought should be disclosed. Section 11(2) provides the third party with a right to make a representation against the proposed disclosure within ten days of receiving the notice. The provision expressly mandates the Information Officer to take into consideration the objections of the third party when making a decision with respect to disclosure or non-disclosure of the information. It encapsulates the fundamental idea that a party whose personal information is sought to be disclosed is Page 21 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined afforded the opportunity to contest disclosure. The proviso to sub section (1) of Section 11 permits disclosure where the "public interest" in disclosure "outweighs" any possible harms in disclosure highlighted by the third party.
262. Sections 8 and 11 must be read together. Other than in a case where the information applicant seeks the disclosure of information which relates to the information applicant herself, information sought that falls under the category of "personal information" within the meaning of clause (j) of Section 8(1) is also "third party information" within the ambit of Section
11. Therefore, in every case where the information requested is "personal information" within the operation of clause (j) of sub section 1 of Section 8, the procedure of notice and objections under Section 11 must be complied with. The two provisions create a substantive system of checks and balances which seek to balance the right of the information applicant to receive information with the right of the third party to prevent the disclosure of personal information by permitting the latter to contest the proposed disclosure.
263. In Arvind Kejriwal v Central Public Information Officer 79 it was contended that the procedure for notifying the third party and inviting objections under Section 11 only applied to situations where the information sought was directly supplied by the third party, and not to situations where the information "related to" the third party but was not supplied by it. Rejecting this contention, Justice Sanjeev Khanna, (as our learned Brother then was) speaking for a Division Bench of the Delhi High Court held:
13... On the other hand, in case the word "or" is read as "and", it may lead to difficulties and problems, including the invasion of right of privacy/confidentiality of a third party.
For example, a public authority may have in its records, medical reports or prescriptions relating to third person but which have not been supplied by the third person. If the interpretation given by the appellant is accepted then such information can be disclosed to the information seeker without following the procedure prescribed in Section 11(1) as the information was not furnished or supplied by the third person. ... when information relates to a third party and can be prima facie regarded and treated as confidential, the procedure under Section 11(1) must be followed. Similarly, in case information has been provided by the third party and has Page 22 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined been prima facie treated by the said third party as confidential, again the procedure under Section 11(1) has to be followed.
.........
15. Section 11 also ensures that the principles of natural justice are complied with. Information which is confidential relating to a third party or furnished by a third party, is not furnished to the information seeker without notice or without hearing the third party's point of view. A third party may have reasons, grounds and explanations as to why the information should not be furnished, which may not be in the knowledge of the PIO/appellate authorities or available in the records. The information seeker is not required to give any reason why he has made an application for information. There may be facts, causes or reasons unknown to the PIO or the appellant authority which may justify and require denial of information. Fair and just decision is the essence of natural justice. Issuance of notice and giving an opportunity to the third party serves a salutary purpose and ensures that there is a fair and just decision. In fact issue of notice to a third party may in cases curtail litigation and complications that may arise if information is furnished without hearing the third party concerned. Section 11 prescribes a fairly strict time schedule to ensure that the proceedings are not delayed. (Emphasis supplied)
264.The procedure under Section 11 must be complied with not only in cases where information has been supplied to the public authority by a third party, but equally when the information which is held by the public authority "relates to"
a third party. Section 11 is not merely a procedural provision, but a substantive protection to third parties against the disclosure of their personal information held by public authorities, without their knowledge or consent. The mere fact that the public authority holds information relating to a third party does not render it freely disclosable under the RTI Act. A third party may have good reason to object to the disclosure of the information, including on the ground that the disclosure would constitute a breach of the right to privacy. By including the requirement of inviting objections and providing a hearing on the proposed disclosure of third party information to the very party who may be adversely Page 23 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined impacted by the disclosure, Section 11 embodies the principles of natural justice.
265. In the present case, the information sought pertains to the declaration of assets of members of the judiciary and official file notings and correspondence with respect to the elevation of judges to the Supreme Court. The information sought with respect to the assets of judges is not generated by the Supreme Court itself, but is provided by individual judges to the Supreme Court. The file notings with respect to the elevation of judges do not merely contain information regarding the operation of the Supreme Court, but also relate to the individual judges being considered for elevation. Thus, the information sought both "relates to" and "has been supplied by" a third party and has been treated as confidential by that third party. The procedure under Section 11 is applicable in regard to the information sought by the respondent and must be complied with."
11. Considering the facts and record of the present case and the position of law, as referred above, the reliance which is placed by the petitioner herein on the judgment in the case of State of Jharkhand and Ors. Vs. Navin Kumar Sinhga and Ors. reported in AIR 2008Jhar19 can be said to have been passed in the facts of the said case. Considering the ratio as laid down by the Hon'ble Supreme Court as referred above, the information that would be in the public domain, would be available on the website of the respondent authorities and which would be germane for the knowledge of the public. The information which has been denied / rejected qua the petitioner herein, is after Page 24 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined following the procedure envisaged under Section 11 of the RTI Act and having called for objections and the stake-holders having denied to part with the said information. This Court has considered the documents in question and also provisions of Section 8(1)(d) and Section 11 of the RTI Act, wherein, even considering the case of the petitioner, independently, the information which is sought for, by the petitioner herein, does not involve any public interest and the petitioner herein is one of the stake-holders, he being a successful bidder at the technical bid stage, however, he was an unsuccessful bidder at the final stage, and therefore, the information sought for, is for personal knowledge and information of the petitioner herein.
12. On the aforesaid short ground, no interference is called for in the orders impugned passed by the respondent authorities, moreover, this Court would not sit in appeal over three concurrent findings arrived at by the respondent authorities, having considered the information as sought for under the provisions of the RTI Act. The information as prayed for by the petitioner, having been denied concurrently, which pertains to Page 25 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023 NEUTRAL CITATION C/SCA/9867/2021 JUDGMENT DATED: 14/06/2023 undefined the disclosure of details mentioned in Form Nos. F-7 to F-9 which pertains to various documents / details from the bidders related to turn over of their company / agency and the tender process being a recurring tender process every year and parting with such information as prayed for by the petitioner herein would actually be parting with trade secrets of the respective bidders and the same would also affect the subsequent tender process. The third parties also having objected to the parting of such information. In the opinion of this Court, no interference is called for under Article 226 of the Constitution of India, in the decision making process and the decision arrived at by the concerned respondent authorities, the same having been decided after considering the facts of the case and the provision of the Right to Information Act, 2005.
In view of the aforesaid, the present Petition is not entertained and is dismissed accordingly.
(VAIBHAVI D. NANAVATI,J) Pradhyuman Page 26 of 26 Downloaded on : Sat Sep 16 20:15:20 IST 2023