Central Information Commission
Shri Sudhir Vohra vs Delhi Metro Rail Corporation on 20 October, 2009
CENTRAL INFORMATION COMMISSION
Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066
File No.CIC/LS/A/2009/000987
Appellant : Shri Sudhir Vohra
Public Authority : Delhi Metro Rail Corporation
Date of Hearing : 20th October, 21st October & 28th October, 2009
Date of Decision : 20th October & 28th October, 2009
FACTS :
By his letter of 15.7.2009, the appellant had sought the following information :-
"The Cantilevered bracket of Metro Pillar Number 67, as described above, collapsed on the 12th July, 2009, as reported in various media. INFORMATION REQUESTED :
1 All structural drawings of both the pile foundation and the superstructure, including all steel reinforcement details, foundation details, engineering calculations and SOIL Tests.
I would like to inspect all files and File notings relevant to the above captioned subject. I draw this right to inspect your files from the office memo no. 1/20/2009 IR dated 23rd June, 2009 issued by the Competent Authority dealing with RTI Act.
As such, please let me know the time and date convenient for you to allow me to inspect the relevant files."
2. To this, the DMRC had replied as under :-
"Kindly note that the information you have sought, i.e. all structural drawings of both the pile foundation and the superstructure, including all steel reinforcement details, foundation details, engineering calculations along with the file inspection are intellectual property of DMRC as considerable cost and time have been spent in preparing them. Hence, exempted from disclosure under section 8 (1) (d) of the RTI Act."
3. Dissatisfied with the decision of DMRC, the appellant had filed the present appeal dated 19th August, 2009 before the Commission, seeking the following relief :-
"1. Order the DMRC to issue all the information requested by me.
2. Ensure that such order be applicable to other structures for which I have filed similar RTI applications on the same Metro Line, and
3. Any other order which the Commission may deem fit to be passed."
4. Heard on 20.10.2009. Appellant present. The public authority is represented by Shri Kumar Keshav, Director (Projects); Shri N.P. Singh, GM (Legal) & Shri Anuj Dayal, PRO.
5. It is the principal submission of the appellant that as a patriotic citizen, he is concerned about the safety of the MRTS being constructed by DMRC. Collapse of pillar No. 67 even without the dynamic load of the rail system has caused him dismay and raised doubts about the efficacy of the structures being erected by DMRC. He would also plead that denial of information on the ground that the drawings/designs in question are intellectual property of DMRC is not correct in as much as for claiming this exemption under the relevant law, the public authority has to establish that it has applied for the registration of the intellectual property in question with the competent authority, as provided in the relevant law or, prove that such registration has already been made by the competent authority. Thus, according to him, denial of information under clause
(d) of section 8 (1) of the RTI Act is not justified in the facts and circumstances of the case.
6. The second limb of his submission is that due to the collapse of Pillar No. 67 on 12.7.2009, 06 people died and some others sustained injuries. Obliviously, the pillar had a faulty design because of which it collapsed. Hence, it would be in the larger public interest to disclose the information sought by him.
7 Shri Keshav seeks adjournment to make detailed submissions and also to make a written representation in this behalf. The appellant has no objection to this. Hence, the matter is adjourned to 21.10.2009 at 1030 hrs.
8. As scheduled, the matter is called for hearing on 21.10.2009 at 1030 hrs. Appellant present. The public authority is represented by Shri Chakravarti, Asstt. Manager (APIO) & Ms. Kumkum Mishra, Asstt. Law Officer. Shri Chakravarti submits a written representation signed by Shri Kumar Keshav, Director (Projects) (AA). The operative para thereof is reproduced below :-
"The above said matter is listed for hearing on 21.10.2009 at 10.30 AM wherein the respondent applicant has to address the issue relating to intellectual property exempted under the provisions of RTI Act. Since the issue is of serious nature and having an impact on future RTI applications, we are seeking an expert opinion in the matter.
It is submitted that at least one week's time may be granted to address the issues pertaining to this case before your honour."
9. In view of the above, the matter is adjourned to 28.10.2009 at 1030 hrs. 10 The matter is called for hearing on 28.10.2009. The following are present:-
For DMRC • Shri Kumar Keshav, Director/Projects (AA) • Shri Anuj Dayal, CPRO (PIO) • Shri N.P. Singh, GM (Legal) • Shri Rajan Kataria, CE/Design • Shri S.K. Gupta, CPM/SE • Shri Tarun Johri, Advocate • Shri Ankur Gupta, Advocate For Appellant • Shri Sudhir Vohra • Ms. Kriti Gulati • Ms Nivedita Khandekar
11 Shri Kumar Keshav, Director (Projects), DMRC files a written representation which is extracted below in extenso :-
"1. That the instant Appeal as has been filed by the appellant is not maintainable and the same is liable to be dismissed. It is submitted that disclosure of the structural design including reinforcement details, engineering calculations for the Metro pillar no. 67 and any other design specifications to the general public as well as to the appellant would directly affect the safety and security of the Metro Rail system and thus would impinge upon the sovereignty and integrity of India as also the security and strategic interest of the State and further may lead to incitement of an offence. For the said security and safety reasons the Respondent is not obliged under the provisions of Section 8 (1) (a) of the Right to Information Act, 2005, ("Act") from disclosing or giving any copy of the structural designs and other designs and calculations of Metro pillar no. 67 to the appellant.
2. The DMRC on regular basis receives various security advisories from the law enforcement authorities in respect of the safety and security of the Metro System, which indicates that the Metro system is high on the list of the sensitive structures, which are susceptible to security threats. In this background disclosure of the structural design and other technical details and calculations of Metro pillar no. 67 would be an open invitation to any anti national person to have inside knowledge of the design of any important structure of DMRC, and would thus directly compromise the safety of the other similar structures which are existing on the Metro System. It is pertinent to mention that the same structural design has been replicated in about 08 other similar structures, whose safety would be compromised on the said disclosure of technical details and structural designs to the appellant herein.
3. That the instant appeal is not maintainable and the same is liable to be dismissed in view of the exemption from disclosure as provided under Section 8 (1) (d) of the Act, which protects the information pertaining to the commercial confidence, trade secrets or the intellectual property. The relevant provisions of the Copyright Act, 1957 are reproduced herein :-
Section 2.
b) work of architecture means any building or structure having an artistic character or design, or any model for such building or structure;
c) "artistic work" means :-
(i) a painting, a sculpture, a drawing (including a diagram,
map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
(ii) a work of architecture; and
(iii) any other work of artistic craftsmanship;
Section 13(5) of the Copyright Act, 1957 states :
Section 13. Works in which copyright subsists :
(5) In the case of a work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.
It is thus apparent that the Structural design and the technical calculations/drawings of Metro Pillar No. 67, form part of the work of architecture which are entitled to Copyright protection under the Copyright Act, 1957. The DMRC being the owner of the Structural Design and the technical calculations/drawings of the Metro Pillar No. 67, is also the owner of the Copyright in the said designs, calculations and drawings and is thus the owner of the Intellectual Property subsisting in such designs, calculations and drawings.
In view of the above facts and the circumstances, it is stated that the not only the answering Respondent has a right to protect its designs i.e. intellectual property or the copyright from disclosure under Section 8(1)
(d) of the RTI Act as also under the Copyright Act, 1957 and also under the common law.
4. That the instant Appeal is not maintainable and the same is liable to be dismissed, as the disclosure of the structural design including reinforcement details of Metro Pillar No. 67, which are a part of the answering Respondent's intellectual property and is protected under the Copyright Act and would be against the commercial interest of the DMRC. It is stated that the DMRC has generated designing and other technical expertise in construction of Metro Systems, of which it is the Intellectual property owner. It is stated that the DMRC has engaged itself in rendering consultancy services including that relating to the designs and structural formations. The DMRC has also been approached by various countries around the world, to provide them the consultancy services as well as to set out the design parameters or the standards with respect to the implementation or the development of the Metro Rail Projects in such countries. It is stated that, any disclosure of the structural design including the reinforcement details etc may lead to divestment of the Intellectual Property rights of DMRC and would thus cause irreparable loss to the DMRC. Any such information as has been asked for by the Appellant can be put to use against the interest of the DMRC by the other business competitors of DMRC, as in such a case all expertise or the relevant designs of the piers, cantilever, structural designs etc would be known to such parties against the wishes of the DMRC.
5. That the instant Appeal is not maintainable and the same is liable to be dismissed in view of he exemption or protection from disclosure as has been asked for by the Appellant may impede the process of investigation or apprehension or prosecution of offenders. It is stated that the after incident dated 12.7.2009 when the Metro Pillar No. 67 got collapsed, the Assistant Commissioner of Police Inter State Cell, Crime Branch, Chanakaya Puri, New Delhi had registered an F.I.R. being F.I.R. No. 344/2009 under Section 287/337/338/304A Indian Penal Code, at P.S. Amar Colony, New Delhi. It is stated that the while conducting the investigation under the relevant provisions of the Indian Penal Code, the Crime Branch vide its letter No. 690-ACP/ISC dated 4.9.2009 had give a questionnaire as had been raised by the Indian Institute of Technology, Roorkee, to the answering Respondent asking it to give a brief reply on the issues raised under the said questionnaire along with relevant documents. The Respondent had vide its leter dated 6.10.2009 submitted a brief reply to the said questionnaire stating out each and every fact with respect to structural design, cantilever structures, tender drawings, design basis report, design calculations and further enclosed a copy of the above noted designs or drawings along with the said reply. It is stated that as the Police/crime Branch is seized of the matter and conducting its investigation, the aforesaid documents namely the copy of the above noted designs or drawings and other details of Metro Pillar No. 67, now forms part of the police record under the above noted F.I.R. and are in fact case property. The disclosure of any such information to the general public or to the appellant, as asked for, when an Police investigation in respect of the same is pending would impede the process of investigation or apprehension or prosecution or offenders and therefore, the same is liable to be exempted from any disclosure under the provisions of the 8(1) (h) of the Act." 12 It is the submission of Advocate Tarun Johri that the information sought by the appellant is exempted from disclosure in terms of section 8 (1) (a) of the RTI Act. It is his say that the design of Pillar No. 67 is an Engineering Design which has certain sensitive/susceptible points such as shear key/shear bar etc. Several other pillars constructed by DMRC are nothing but replication of this pillar. 8 to 10 lakh passengers travel on Delhi Metro everyday. If the details of the design/drawing are disclosed to the appellant or the public at large, there is a possibility of anti-national elements causing sabotage to the structures at the vulneralable points. It is for this reason that even photography of certain sensitive structures, such as bridges, etc. is prohibited. Thus, disclosure of the design/drawing in question may be prejudicial to the safety and security of the travelling public and would impinge on the sovereignty and integrity of India as also the security and the strategic interests of the State. 13 He would further submit that Pillar No. 67 is a civil structure and it is work of 'Architecture' as defined in clause (b) of section 2 of the Copyright Act, 1957. It is also an 'artistic work' as defined in clause (c) of section 2 of the said Act. The structural design and technical calculations/drawings of Pillar No. 67 form part of the work of Architecture which is entitled to protection under the Copyright Act. The DMRC is the owner of the structural design and the technical calculations/drawings of Pillar No. 67 and the intellectual property in such designs, calculations, and drawings subsists in DMRC. Hence, the information sought is exempted from disclosure u/s 8 (1) (d) of the RTI Act. He would, however, clarify that the intellectual property subsists only in the artistic character and design and shall not extend to processes or methods of construction. 14 He would further submit that registration of copy right is not a condition precedent for seeking protection of the Copyright Act, 1957. He has drawn the Commission's attention to para 33 of the Hon'ble Delhi High Court order dated 28.11.2008 in Rajesh Masrani Vs Tahilaiani Design Pvt Ltd in this connection which is extracted below :-
"33. A person has an inherent copyright in an original composition or compilation with the necessity of its registration. Satsant and Anr. v. Kiron Chandra Mukhopadhyay and Ors. MANU/WB/0114/1972 : AIR1972Cal533. Registration of the work under the Act is not compulsory and registration is not a condition precedent for maintaining a suit for damages for infringement of copyright. The safest test to determine whether or not there has been a violation of copyright is to find out if the reade, spectator or viewer after having read or seen both the works can get an impression that the impugned work or film is an imitation of the other. In the instant case, no prudent man who has seen the film and read the novel Alayazhi will come with an impression that the former is an imitation of the latter. R. Madhavan v. S.K. Nayar MANU/KE/0009/1988 :
AIR1988Ker39. Registratio of such right under Section 44 of the Act is not a condition precedent for availing the remedy, such as suing for an injunction restraining infringement of the right, intended to provide for prima facie proof of the particulars regarding the right as stated in Section 48. Nav Sahitya Prakash and Ors. v. Anand Kumar and Ors. MANU/UP/0177/1981 : AIR 1981AII200."
15 Advocate Johri's further submission is that DMRC is a prestigious organization of the Govt. of India which has generated designing and other technical expertise in the construction of Metro system. The DMRC is running consultancy services, including those relating to design and structural formulations, within the country and also abroad. Any disclosure of the structural designs, including the reinforcement details, may lead to divestment of intellectual property rights of DMRC and would, thus, cause it irreparable commercial detriment. Further, disclosure of the designs may jeopardize the competitive edge of DMRC as a consultant.
16 He would also submit that the Delhi Police has registered a criminal case vide FIR No. 344/2009 u/s 287 / 337/338/304A of the Indian Penal Code at Police Station Amar Colony, New Delhi, and the matter presently is under investigation. Hence, information sought is exempted from disclosure under clause (h) of section 8 (1) of the RTI Act also. He has relied on the Hon'ble Allahabad High Court judgement dated 23.09.2008 (Vikram Simon Vs State Information Commission, Uttar Pradesh) in this regard.
17 On the other hand, the appellant would submit that section 8 (1) (a) of the RTI Act is not attracted in the facts and circumstances of the case in as much as clause (a) bars disclosure of information affecting the sovereignty and integrity of India and the security and strategic interests of the State. Pillar No. 67 collapsed on 12.7.2009 resulting in the death of 06 persons. Several other Pillars, namely 33, 34, 39, 53, 54,56,57,60,65,66,68 and 69 have substandard construction and are being considered for retrofitting. The DMRC is thinking in terms of repairing/strengthening/ demolishing and rebuilding them. He is essentially concerned with the safety of the travelling public. Hence, disclosure of the structural design has no bearing on the sovereignty and integrity of India or the security and strategic interests of the State.
18 He would also submit that Pillar No. 67 is not the intellectual property of DMRC in that it is not a work of 'Architecture' and, therefore, no copyright for design of this pillar can submit in law. He would also submit that exemption claim u/s 8 (1) (h) is also not relevant in the matter in hand. 19 However, the main point raised by the appellant is that disclosure of the design of the 'failed' structure, that is, Pillar no. 67, has no buyers in the market and, therefore, the DMRC's argument that disclosure of the structural design is likely to cause it financial detriment is simply hypothetical 20 He would also submit that as the matter in hand involves the safety of the travelling public at large, it would be in the larger public interest to disclose the structural design of Pillar No. 67 so that it could be improved for preventing recurrence of such accidents/happenings. He has, thus, strongly pleaded for disclosure of the requested information.
21. There is no doubt that DMRC is a very prestigious project of the Govt. of India. It is also undisputable that it has won all round applause from the cross section of the society. However, the collapse of Pillar No. 67 resulting in 06 deaths and the urgent need for retrofitting 12 other pillars having similar design has somewhat shaken the confidence of the travelling public in the efficacy of the Metro system. In my opinion, the matter in hand raises an important question of law i.e. protection of the intellectual property rights vis-à-vis, the right of the people to know the design of the collapsed pillar under the RTI Act. This question has serious implications and ramifications for the DMRC as also for the travelling public. Hence, in my opinion, it would be expedient to refer this matter to a Full Bench to adjudicate on the following issues :-
(i) whether the structural design of Pillar No. 67, is intellectual property of DMRC under the Copyright Act, 1957;
(ii) whether the disclosure of structural design and reinforcement details of this Pillar are barred under clauses (a), (d) and (g) of section 8(1) of the RTI Act; &
(iii) whether the public interest in disclosure outweighs the harm to the protected interests in the matter in hand.
Sd/-
(M.L. Sharma) Central 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.
(K.L. Das) Assistant Registrar Address of parties :-
1. Shri Neeraj Kumar Gayagi CPIO, Principal controller of Defense Accounts (WC), Sector-9, Chandigarh.
2. Dr. Surinder Singh No. 1219, Sector-15, Chandigarh.