Central Information Commission
Mrc V Bhagwant Rao vs National Thermal Power Corporation on 8 July, 2016
CENTRAL INFORMATION COMMISSION
August Kranti Bhawan, Bhikaji Cama Place,
New Delhi-110066
F.No. CIC/YA/A/2016/000328
F.No. CIC/YA/A/2016/001313
F.No. CIC/YA/A/2016/001511
F.No. CIC/YA/A/2016/000329
F.No. CIC/YA/A/2016/000332
F.No. CIC/YA/A/2016/000410
F.No. CIC/YA/A/2016/001157
F.No. CIC/YA/A/2016/001187
F.No. CIC/YA/A/2016/000526
F.No. CIC/YA/A/2016/000409
Date of Hearing : 15.06.2016
Date of Decision : 08.07.2016
Appellant/Complainant : Shri CV Bhagwant Rao
Durg (Chhattisgarh)
Respondent : CPIO,
NTPC-SAIL Power Company Pvt. Ltd.
Through:
Shri O.P. Khorwal, Consultant
Shri Pankaj Kumar Singh, DGM, NSPCL
CPIO, National Thermal Power
Corporation Ltd.
Delhi.
Through:
Shri M.K. Goel, CPIO NTPC
Shri John Philip, Sr. Manager(HR)
Shri N.S. Anuragi, NTPC Gadarwara
Information Commissioner : Shri Yashovardhan Azad
Since same parties are involved in the present appeals, the appeals are
clubbed together for hearing and disposal to avoid multiplicity of
proceedings.
Case No. RTI filed on CPIO reply First appeal FAA order 2nd appeal
filed filed on
0328 22.09.2015 27.10.2015 02.12.2015 28.12.2015 22.01.2016
1313 05.12.2015 08.01.2016 27.11.2016 25.02.2016 15.03.2016
1511 05.12.2015 08.01.2016 27.01.2016 25.02.2016 28.04.2016
0329 28.07.2015 18.09.2015 28.10.2015 04.12.2015 22.01.2016
0332 12.10.2015 06.11.2015 16.11.2015 05.01.2015 22.01.2016
0410 12.10.2015 09.11.2015 09.12.2015 11.01.2016 04.02.2016
1157 21.09.2015 30.11.2015 06.01.2016 03.03.2016 15.03.2016
1187 05.12.2015 19.01.2016 27.01.2016 26.02.2016 17.03.2016
0526 28.07.2015 23.09.2015 28.10.2015 04.12.2015 22.01.2016
0409 12.10.2015 09.11.2015 09.12.2015 11.01.2016 04.02.2016
Factual Background:
At the outset, the parties were directed by the Commission to narrate their
respective versions of factual matrix whereupon the present appeals are
predicated.
The CPIO, NTPC seeks liberty for addressing opening arguments and the
same is allowed. He states that the respondent company is an ace thermal
power Generator Company operating various thermal power plants where ash
is produced as bye product. He states that the Ash Dykes are constructed to
store ash and periodically raised to enhance their capacity. He states that one
M/s Subhash Infraengineers Pvt. Ltd. (SIPL) were awarded ash dyke
construction work at Korba super thermal power station. One M/s Bihar
Construction is stated to be have been executing the aforesaid work as sub
contractor of SIPL. The CPIO states that the said M/s Bihar Construction was
blacklisted by NTPC for submitting forged documents for enlistment of height
raising works of ash dyke. The respondent introduces the appellant as
attorney of the said Bihar Construction. The CPIO alleges that as many as 25
RTI applications were filed by the appellant wherein technical details & know
how of raising ash dyke were sought .The CPIO alleges that the appellant
acting as proxy of a dissatisfied contractor is resorting to coercion through
filing various RTI applications.
On the other hand, the appellant does not dispute the contentions put forth
by the CPIO but vehemently reiterates his right to seek information without
assigning the reasons thereof. He states to be aggrieved by the non disclosure
of information.
Since appeals No. CIC/YA/A/2016/000328 & CIC/YA/A/2016/001157
involve similar issues of fact & law; they are being clubbed together for
hearing and disposal.
CIC/YA/A/2016/000328
Information soughtand background of the case:
Vide RTI application dated 22.09.2015, the appellant sought copy of letter of award issued in favour of Subhash Infraengineers Pvt. Ltd for construction of Starter Ash Dyke of Rourkela Power plant of NSPCC along with post bid minutes forming part of award letter. Vide letter dated 27.10.2015, the CPIO denied information u/s 8(1) (d) & (e) of the RTI Act. The FAA upheld the decision of the CPIO. Feeling aggrieved the appellant approached the Commission.
CIC/YA/A/2016/001157 Information sought and background of the case:
Vide RTI application dated 21.09.2015, the appellant sought copy of letter of award issued for construction of Starter Ash Dyke at Gadarwara Super power plant of NSPCC along with post bid minutes forming part of award letter. Vide letter dated 30.11.2015, the CPIO denied information u/s 8(1) (d) & (e) of the RTI Act. The FAA upheld the decision of the CPIO. Feeling aggrieved the appellant approached the Commission.
Relevant facts emerging during hearing:
Both parties are present and heard. The appellant states that the respondent-public authority ie. NTPC-SAIL Power Company Private Ltd. is a joint venture of the NTPC & SAIL and thus requests disclosure of information to facilitate public scrutiny in award of tenders. CPIO states that information was denied as appellant being engaged as sub contractor by the successful bidder; any disclosure of information sought would have diminished the competitive advantage of the aforesaid successful bidder. He further states that NTPC has imposed a 3 year ban on M/s Bihar Construction Company (black listing of the organisation). Relying on clause (d) of Section 8(1) of the RTI Act, 2005, he submits that post-bid meeting minutes contain vital negotiations of financial & technical nature, between the contractee & successful bidder and hence, any revelation thereof would jeopardize the commercial confidence of the parties involved. Decision:
After hearing parties and perusal of record, the Commission finds that letter of award of a civil work by a public authority cannot ipso facto qualify for exemptions enumerated under Section 8. The CPIO as well as FAA erred while denying disclosure enbloc of the information sought. While elements of commercial confidence may be embedded in the minutes of post-bid meetings; no blanket exception can operate over all the information sought. The CPIO is directed to furnish letter of award of contract after redacting minutes of post bid meeting.
The appeals are thus allowed accordingly.
CIC/YA/A/2016/001313 Information sought and background of the case:
Vide RTI application dated 05.12.2015, the appellant sought photocopy of the track record of ash utilisation of existing 2X250 MW power plant, as submitted to the Ministry of Environment. On 08.01.2016, the CPIO denied the information invoking section 8(1)(d)(e). The FAA affirmed the decision of CPIO. Feeling aggrieved the appellant approached the Commission. Relevant facts emerging during hearing:
Both parties are present and heard. The appellant states that information sought for has not been provided despite the document being part of public record. The respondent states ash is generated as a bye product from thermal power projects and as per the policy of GoI, NSPCL is constantly endeavouring to utilize 100 percent of the ash. The respondent voluntarily agrees to disclose the information regarding the disposal of the ash, however, seeks refuge under Section 8(1)(d) to redact information relating to sale price & particulars of buyers of the ash. The appellant is keen to know the utilization pattern of the ash generated alongwith percentage of utilization only.
Decision:
In view of the consensus arrived at between parties, the CPIO is directed to furnish statement of ash utilization to the appellant within 2 weeks of receipt of this order. Needless to say, the CPIO shall be at liberty to redact information of commercial value while complying the aforesaid directive of the Commission.
The appeal is allowed accordingly.
CIC/YA/A/2016/001511 Information sought and background of the case:
Vide RTI application dated 05.12.2015, the appellant sought copy of Air quality report as submitted to Ministry of Environment & Forests for a period of 01.04.2010 to 30.09.2015 for setting up of 2X250 MW Power Plant. CPIO vide letter dated 08.01.2016, denied the information u/s 8(1)(d). FAA vide order dated 25.02.2016 upheld the decision of CPIO. Feeling aggrieved, the appellant approached the Commission.
Relevant facts emerging during hearing:
Both parties are present and heard. At the outset, the CPIO voluntarily undertakes to furnish copy of the air quality report in question.
Decision:
After hearing parties and perusal of record, the Commission directs the CPIO to furnish complete information as sought within 2 weeks of receipt of this order.
The appeal is allowed accordingly.
CIC/YA/A/2016/000329 Information sought and background of the case:
Vide RTI application dated 28.07.2015, the appellant sought photo copy of grain size analysis report of bottom ash and pond ash, as used in construction of raising of Dhanras Ash Dyke at NTPC project, Korba. Through letter dated 18.09.2015, the CPIO denied information u/s 8(1)(d). The FAA vide order dated 04.12.2015 upheld that reply of CPIO. Feeling aggrieved, the appellant approached the Commission.
Relevant facts emerging during hearing:
Both parties are present and heard. The appellant states that information sought was denied by CPIO without application of mind. The appellant alleges that the respondent authority used inferior quality of materials while constructing the Dhanras Ash Dyke at Korba. The appellant states to have sought information in order to verify, if norms were adhered to while constructing the aforesaid dyke structure. The CPIO states that material test & analysis reports were obtained by NTPC after incurring costs, solely intended for internal use of NTPC and takes recourse to clause (d) of Section 8(1) of the RTI Act, 2005. The CPIO states that appellant has sought information for his personal gains.
Decision:
After hearing parties and perusal of record, the Commission finds that the RTI application has been dealt with appropriately and no further action is called for. The specification of materials employed in construction is as confidential as the technical know-how of the construction itself. It is undisputed that the developer-respondent incurred costs upon the analysis of the grain size of the ash used in construction. The information sought can be well read into the know-how of civil construction, forming part of intellectual property which is a trade secret. The information sought is thus exempted from disclosure under clause (d) of Section 8(1) of the RTI Act, 2005.
The appeal is sans merit and accordingly dismissed.
Since appeals No. CIC/YA/A/2016/000410 & CIC/YA/A/2016/000526 involve similar issues of fact & law; they are being clubbed together for hearing and disposal.
CIC/YA/A/2016/000410 Information sought and background of the case:
Vide RTI application dated 12.10.2015, the appellant sought copy of note sheet whereby approval was granted for using bottom ash as filler media in 5th raising of ash dyke of Dhanras Korba. CPIO vide letter dated 09.11.2015, denied disclosure of information u/s 8(1)(d). The FAA upheld the decision of CPIO. Feeling aggrieved the appellant approached the Commission.
CIC/YA/A/2016/000526 Information sought and background of the case:
Vide RTI application dated 28.07.2015, the appellant sought photo copy of rate analysis of bottom ash used in lieu of sand as filler media in Dhanras ash dyke of NTPC Korba. CPIO vide letter dated 23.09.2015, denied the information u/s 8(1)(d). The appellant filed an appeal. The FAA vide order dated 04.12.2015 disposed of the appeal by upholding the decision of CPIO. Feeling aggrieved the appellant approached the Commission.
Relevant facts emerging during hearing:
Both the parties are present and heard. The appellant states that the respondents used ash as extra filler while raising the height of the Dhanras Ash Dyke at Korba. He states that though, sand was the most apt material to be used in as filler, the respondent used ash in lieu. Through the present RTI application, he states to have sought the copy of approval note whereby the decision to use ash in place of sand was taken. Per contra, the CPIO clarifies that though initially, sand was intended to be used as filler material in the aforesaid construction work but consequent to ban imposed by State Govt. on sand mining, ash was approved as a filler material in lieu after it was found fit for the purpose after going through various quality tests and rate analysis. He states that due approval was accorded by the competent authority for the same. The CPIO states the information to be commercially sensitive inasmuch containing details of technical feasibility of the usage of ash in lieu of sand. He seeks refuge to clause (d) of Section 8(1) to support his contention.
Decision:
After hearing parties and perusal of record, the Commission finds that the all the information sought cannot be kept from disclosure enbloc. The CPIO ought to have resorted to Section 10 of the RTI Act to severe & disclose that portion of information as not deemed exempted under Section 8. The feasibility analysis including rate analysis of ash as a substitute of sand is indeed a trade secret and validly exempted from disclosure under clause (d) of Section 8(1) of the RTI Act. However, the corresponding administrative decision based upon such analysis does not qualify for exemption from disclosure.
Accordingly, the CPIO is directed to furnish approval note of the competent authority permitting use of ash in lieu of sand to the appellant within 2 weeks of receipt of this order.
The appeal is allowed accordingly.
CIC/YA/A/2016/001187 Information sought and background of the case:
Vide RTI application dated 05.12.2015, the appellant sought photocopies of Field Quality Plan of ash dyke at Gadarwara Thermal Power Project of NTPC. CPIO vide letter dated 19.01.2016, denied the information u/s 8(1) (d). The appellant filed an appeal. The FAA upheld the decision of CPIO. Feeling aggrieved the appellant approached the Commission. Relevant facts emerging during hearing:
The appellant states to have sought copy of field quality plan of ash dyke at Gadarwara Thermal Power Project of NTPC, with a view to ascertain if the norms were adhered to by the respondents in construction of dyke. He further states that FAA did not pass a speaking order in this regard. The respondent states that field quality plan is an intellectual property of NTPC which comes within purview of Section 8(1)(d) and that there is no larger public interest demonstrated involved in providing the information sought by the appellant. He further states that appellant is merely seeking the information for his personal gains Decision:
After hearing parties and perusal of record, the Commission finds merit in the contention of respondent. It is undisputed that the information sought is a report of technical nature, compiled after incurring expenses and involving technical knowhow of the respondents. Any disclosure thereof would jeopardize the commercial interests of the respondent. I see no reason to fetter upon the commercial interests of the respondent public authority thereby placing it in a rather disadvantageous position vis-à-vis its private competitors. The RTI application has been adequately responded to.
The present appeal is dismissed accordingly.
CIC/YA/A/2016/000409 CIC/YA/A/2016/000332 Information sought and background of the case:
Vide RTI application dated 12.10.2015, the appellant sought photocopy of certified measurement of 5th raising of lagoon after its strengthening by Buttressing at Dhanras Ash Dyke of NTPC-Korba for the work done from 05.04.2014 to 30.09.2015. CPIO vide letter dated 09.11.2015, denied the information u/s 8(1)(d). The appellant filed an appeal. The FAA vide order dated 11.01.2016 disposed the appeal by upholding the decision of CPIO.
Feeling aggrieved the appellant approached the Commission.
Relevant facts emerging during hearing:
Both parties are present and heard. The appellant states that the CPIO manifestly erred in law while denying disclosure of information sought. On the other hand the CPIO states that disclosing the certified measurements of the 5th raising of lagoon at Dhanras Ash Dyke of NTPC Korba would necessarily disclose the whole process as well as the technical knowhow of the raising construction. He clarifies that measurements are recorded at regular intervals along with vital parameters and any revelation thereof would disclose the methodology of construction. In this factual backdrop the CPIO justifies the non-disclosure of the information sought. Decision:
After hearing parties and perusal of record, the Commission finds merit in the contention of respondent to the extent that disclosure of whole measurement book would be counterproductive to the commercial interests of respondent public authority. The Commission upon perusal of a copy of measurement book is left with no doubt that the same qualifies for exemption under section 8(1)(d).
The appeals are dismissed accordingly.
(Yashovardhan Azad) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(R.P.Grover) Designated Officer Copy to:-
Central Public Information Officer under RTI First Appellate Authority under RTI (Shri Pramod K. Yadav), (Shri Sharad Anand), N. T. P. C. Limited, N. T. P. C. Limited, NTPC Bhawan, SCOPE Complex, NTPC Bhawan, SCOPE Complex, 7, Institutional Area, Lodhi Road, 7, Institutional Area, Lodhi Road, New Delhi-110003. New Delhi-110003.
Shri C. V. Bhagwant Rao M.I.G.-II/39, HUDCO, Bhilai, District - Durg-490009 (Chhattisgarh).