Central Information Commission
M T Thomas vs Delhi Metro Rail Corporation on 28 July, 2020
के य सचू ना आयोग
Central Information Commission
बाबा गंगनाथ माग, मु नरका
Baba Gangnath Marg, Munirka
नई द ल , New Delhi - 110067
वतीय अपील सं या / Second Appeal No.:- CIC/DMRCL/A/2018/161690/DMRCP-BJ
Mr. M T Thomas
(Email: [email protected])
....अपीलकता/Appellant
VERSUS
बनाम
CPIO
PIO - 7, Delhi Metro Rail Corporation Ltd.
25, Ashoka Road, New Delhi - 110001
... तवाद गण /Respondent
Date of Hearing : 23.07.2020
Date of Decision : 28.07.2020
Date of RTI application 24.07.2018
CPIO's response 13.08.2018
Date of the First Appeal 08.09.2018
First Appellate Authority's response 19.09.2018
Date of diarised receipt of Appeal by the Commission 10.10.2018
ORDER
FACTS:
The Appellant vide his RTI application sought information on 08 points in reference to Final CIC Order in CIC/NEERI/A/2017/177852 dated 16.01.2018 and letter No. dated 08.01.2018, whether approval was obtained from the Kerala Government for the DPR of the Kerala High Speed Rail Project; copy of the DPR in CD; amount received by DMRC towards the DPR including environmental study of the project and other issues related thereto.
The CPIO, vide its letter dated 13.08.2018 provided a point-wise response to the Appellant. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 19.09.2018, upheld the response provided by the PIO-7. However, the Appeal of the Appellant was being sent to Kerala High Speed Rail Corporation Limited for further necessary action at their end on item no. 02.Page 1 of 6
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. M T Thomas through VC;
Respondent: Gp. Capt. Sanjay V. Kute, GM/ L & CPIO and Mr. Rajshekhar K., JGM / CS in person;
The Appellant reiterated the contents of the RTI application and stated that the information sought was not received by him, till date. He contested the order passed by the FAA in respect of point nos. 02 & 04 to 08 of the RTI application. With regard to point no. 02 regarding the copy of DPR, he submitted that it is a basic document required for approval of the project by various Governmental Agencies and hence, a public document, the same should be disclosed as a matter of larger public interest. Furthermore, he submitted that no intellectual property rights could be claimed by the Respondent as per the decision of the Hon'ble High Court of Bombay in Ferani Hotels Private Limited Vs. State Information Commissioner and Others dated 30.10.2015. Furthermore, he submitted that the DPR is related to the proposed Kerala High Speed Rail Project between Trivandrum to Kasargode involving acquisition of more than 20,000 acres of prime land including forest land and eviction of more than a lakh of people. The project cost is estimated to be around 1,00,000 crores of public money and therefore, the same could not be denied on the pretext of commercial confidence. Attention of the Commission was also drawn towards the decision of the Commission in File No. CIC/NEERI/A/2017/177852 dated 05.05.2017 (incorrectly referred to as 16.01.2018) wherein direction was given to the Public Authority (National Environmental Engineering Research Institute) to provide the final report of the DMRC environmental study, within 20 days. He therefore, requested the Commission to direct the Respondent to furnish the desired information and to take suitable action as per the provisions of the RTI Act, 2005, for not furnishing the information, till date. In its reply, the Respondent reiterated the replies of the CPIO/FAA and reiterated their written submission.
With regard to points 04 to 08, it was submitted that the DMRC did not have any such information with regard to Semi High Speed Rail Project. Accordingly, a suitable reply was provided, as per the provisions of the RTI Act, 2005. While contesting the decisions cited above by the Appellant, the Respondent submitted that the same was not applicable in the instant case as the Hon'ble Supreme Court in the matter of Ferani Hotels Private Limited vs. the State Information Commissioner, Greater Mumbai & Others dated 27.09.2018 directed to disclose the building plans, sanctioned plans, and details of commercial establishments, etc., in the public domain. As regards the decision of the Commission in File No. CIC/NEERI/A/2017/177852, it was submitted that the Commission had directed to provide the final report of environmental study and therefore, both the cases referred to by the Appellant is not applicable in the instant case. On being queried by the Commission whether the Appellant had filed any RTI application with the Kerala High Speed Rail Corporation Ltd. regarding the copy of Detailed Project Report, he replied in the affirmative and stated that the matter is pending with the State Information Commission. The Respondent consistently maintained its earlier submission and stated that the information sought on point 02, could not be furnished being a matter of commercial confidence and as per the Memorandum of Understanding signed between the Respondent Public Authority and the Kerala Government. The Respondent further relied on its written submission, receipt of which was denied by the Appellant. The Respondent however, agreed to forward a copy of the written submission forthwith at the given email address.
Page 2 of 6The Commission was in receipt of a written submission from the Respondent dated 15.07.2020 wherein while reiterating the contents of the RTI application, reply/order of the CPIO/FAA, it was submitted that DMRC has entrusted consultancy work by Kerala Government for Preparation of DPR for Kerala High Speed Rail corridor between Thiruvananthapuram to Kasargod (Length 526 Km) for which MoU was signed on 21st May 2012. The Final DPR has been submitted to the CLIENT i.e. Kerala High Speed Rail Corporation Ltd vide Letter No. DEMRC/20/V/434/KHRC/DPR/ 2019/540 dated 27.08.2019. The said DPR is the propriety of Kerala Govt. and DMRC had prepared the same as a Consultancy work. A copy of the Order of First appellate authority dated 19.09.2018 was also endorsed to CMD, Kerala High Speed Rail Corporation for further necessary action for Item No. 2 of RTL. KHRCL vide letter dated 08.10.2018 replied to the Applicant Mr. M. T. Thomas stating that:-
"The Detailed project report (DPR) of Kerala High Speed Rail Corridor is not complete and sanctioned by Government. Further DPR is an intellectual property of KHRCL as per section 8(1) d of RTI Act 2005 and hence cannot be given"
Further, the Applicant vide item no 4 to 8 of the RTI had sought information whether pre- feasibility study for Semi High Speed Rail Project of Kerala Rail Development Corporation Ltd for the Corridor between Trivandrum to Kasargode has been entrusted to DMRC. In this regard, it was submitted that DMRC does not have any such information with regard to above Semi High Speed Rail Project. Accordingly reply to item no. 4 to 8 was given to the Applicant. In view of above, it was submitted that the relevant information sought by the Appellant had been furnished by DMRC. Also the client KHRCL had already replied to the RTI Applicant as stated above. Therefore, it was humbly requested the Commission to dismiss the Appeal.
The Commission referred to the definition of information u/s 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
35..... "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 Page 3 of 6 the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the 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."
In the context of non disclosure of information under Section 8(1)(d) of the RTI Act, 2005, the decision in Naresh Trehan vs Rakesh Kumar Gupta (W.P(C) 85/2010) decided on 24.11.2014, was referred to, wherein it was held as under:
14. "....Such information would clearly disclose the pricing policy of the assessee and public disclosure of this information may clearly jeopardise the bargaining power available to the assessee since the data as to costs would be available to all agencies dealing with the assessee. It is, thus, essential that information relating to business affairs, which is considered to be confidential by an assessee must remain so, unless it is necessary in larger public interest to disclose the same. If the nature of information is such that disclosure of which may have the propensity of harming one's competitive interests, it would not be necessary to specifically show as to how disclosure of such information would, in fact, harm the competitive interest of a third party. In order to test the applicability of Section 8(1)(d) of the Act it is necessary to first and foremost determine the nature of information and if the nature of information is confidential information relating to the affairs of a private entity that is not obliged to be placed in public domain, then it is necessary to consider whether its disclosure can possibly have an adverse effect on third parties."Page 4 of 6
The Commission observed that the framework of the RTI Act, 2005 restricts the jurisdiction of the Commission to provide a ruling on the issues pertaining to access/ right to information and to venture into the merits of a case or redressal of grievance. The Commission in a plethora of decisions including Shri Vikram Singh v. Delhi Police, North East District, CIC/SS/A/2011/001615 dated 17.02.2012 Sh. Triveni Prasad Bahuguna vs. LIC of India, Lucknow CIC/DS/A/2012/000906 dated 06.09.2012, Mr. H. K. Bansal vs. CPIO & GM (OP), MTNL CIC/LS/A/2011/000982/BS/1786 dated 29.01.2013 had held that RTI Act was not the proper law for redressal of grievances/disputes.
The Hon'ble Supreme Court of India in the matter of Union of India v. Namit Sharma in REVIEW PETITION [C] No.2309 OF 2012 IN Writ Petition [C] No.210 OF 2012 with State of Rajasthan and Anr. vs. Namit Sharma Review Petition [C] No.2675 OF 2012 In Writ Petition [C] No.210 OF 2012 had held as under:
"While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority. This function obviously is not a judicial function, but an administrative function conferred by the Act on the Information Commissions."
Furthermore, the High Court of Delhi in the matter of Hansi Rawat and Anr. vs. Punjab National Bank and Ors. LPA No.785/2012 dated 11.01.2013 held as under:
"6. The proceedings under the RTI Act do not entail detailed adjudication of the said aspects. The dispute relating to dismissal of the appellant No.2 LPA No.785/2012 from the employment of the respondent Bank is admittedly pending consideration before the appropriate forum. The purport of the RTI Act is to enable the appellants to effectively pursue the said dispute. The question, as to what inference if any is to be drawn from the response of the PIO of the respondent Bank to the RTI application of the appellants, is to be drawn in the said proceedings and as aforesaid the proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."
Moreover, in a recent decision in Govt. of NCT vs. Rajendra Prasad WP (C) 10676/2016 dated 30.11.2017, the Hon'ble High Court of Delhi had held as under:
6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes.
7. In the present case, it is apparent that CIC had decided issues which were plainly outside the scope of the jurisdiction of CIC under the Act. The limited scope of examination by the CIC was: (i) whether the information sought for by the respondent was provided to him; (ii) if the same was denied, whether such denial was justified; (iii) whether any punitive action was required to be taken against the concerned PIO; and (iv) whether any directions under Section 19(8) were warranted. In addition, the CIC also exercises powers under Section 18 of the Act and also performs certain other functions as expressly provided under various provisions of the Act including Section 25 of the Act. It is plainly not within the jurisdiction of the CIC to examine the dispute as to whether Page 5 of 6 respondent no.2 was entitled to and was allotted a plot of land under the 20-Point Programme.
A similar view delineating the scope of the Commission's jurisdiction was also taken by the Hon'ble High Court of Delhi in Sher Singh Rawat vs. Chief Information Commissioner and Ors., W.P. (C) 5220/2017 and CM No. 22184/2017 dated 29.08.2017 and in the matter of Shobha Vijender vs. Chief Information Commissioner W.P. (C) No. 8289/2016 and CM 34297/2016 dated 29.11.2017.
DECISION:
Keeping in view the facts of the case and the submissions made by both the parties, no further intervention of the Commission is required in the matter. For redressal of his grievance, the Appellant is advised to approach an appropriate forum. The Respondent is however, instructed to forward a copy of the written submission sent to the Commission to the Appellant within a period of 15 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email (Email:
[email protected]), as agreed.
The Appeal stands disposed accordingly.
(The order will be posted on the website of the Commission) (Bimal Julka) ( बमल जु का) (Chief Information Commissioner) (मु य सूचना आयु त) Authenticated true copy (अ भ मा णत स या पत त) (K.L. Das) (के.एल.दास) (Dy. Registrar) (उप-पंजीयक) 011-26186535/ [email protected] दनांक / Date: 28.07.2020 Page 6 of 6