Central Information Commission
Meera Murali vs Bharat Sanchar Nigam Limited on 31 October, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
ि तीय अपील सं या /Second Appeal Nos.- CIC/BSNLD/A/2017/176199
CIC/BSNLD/A/2017/176200
CIC/BSNLD/A/2017/176202 &
CIC/BSNLD/A/2017/178361
Adjunct Order Dated 30.10.2018
Hearing:
1. The instant matter is listed today for further hearing.
2. The appellant participated in the hearing in person. Mr. Kulkarni D. P.
(DGM, BSNL, Karnataka Circle, Bangalore), Mr. K. R. Ramesh Kumar (Counsel
for BSNL, Chennai) and Mr. N. James Roy (DGM, BSNL, Thiruvananthapuram)
represented the respondents. They agreed to hearing of these cases together.
The written submissions are taken on record.
3. The appellant informed this Commission that she is seeking information as a citizen of India on behalf of M/s Huawei Telecommunications (India) Company Private Limited (M/s Huawei), for which she is duly authorized by M/s Huawei vide letter dated 05.06.2017. Therefore, she is competent to seek information u/Section 3 r/w Section 6 of the RTI Act. In this regard, she referred to the decision of the Hon'ble Supreme Court of India titled as Chief Information Commissioner and Ors. Vs. State of Manipur and Ors. (AIR 2012 SC 864).
4. Further, the appellant stated that disclosing the calculation of LD and the basis or reasoning for arriving at the same in no way harms the competitive position of BSNL or M/s Indian Telephone Industries Limited (M/s ITI Ltd). It is a concluded contract wherein all three parties (BSNL, ITI and Huawei) were fully in the knowledge of its terms and conditions and actively executed the same and thus, leaves no scope for commercial confidence or trade secrets as envisaged under Section 8(1)(d) of the RTI Act. In addition, she stated that M/s ITI also had directly requested the BSNL on behalf of itself and Huawei vide 1 letter no. GMB/CORS/080 dated 10.08.2017 to provide complete documents such as minutes of meetings, committee reports, etc. with respect to LD imposition. However, the BSNL has not provided the same till date. This fact clearly eliminates any scope of third party objection. In such a situation, the BSNL cannot be allowed to withhold information from the appellant under the pretext of harming the competitive position of a third party, as all the parties involved have sought the same information, in the interest of natural justice.
5. The respondents stated that the combined reading of Section 3 and Section 6 of the RTI Act clearly reveals and establishes the fact that only citizens have the right to seek information under the RTI Act and the 'company' as a legal entity does not qualify under Section 3 of the RTI Act. It is pertinent to point out that though the appellant claims shelter under Section 6 of the RTI Act, for a person to make an application under section 6 of the RTI Act, he/she should qualify under section 3 of the RTI Act. Further, only a citizen is entitled to seek information under the RTI Act. Hence, the appellant who is seeking information for M/s Huawei Telecommunications (India) Company Private Limited does not qualify under Section 3 of the RTI Act.
6. Further, the respondents stated that the original contract for expansion of GSM network in the South Zone was awarded to M/s ITI Limited by BSNL and all the contracts are bilateral in nature between BSNL and M/s ITI Limited. The terms and conditions of the contract between the M/s ITI Limited and M/s Huawei are governed by a separate agreement and the BSNL is not party to the said agreement. The BSNL is entitled to levy Liquidated Damages under the contract with M/s ITI Limited. The notings, recommendations and minutes of the meeting pertaining to the levy of Liquidated Damages on M/s ITI Limited contains the commercial aspects of the contract between BSNL and M/s ITI Limited. The information sought for pertains to commercial agreement between BSNL and M/s ITI Limited which is in the nature of commercial confidence, the disclosure of which would harm the competitive position of BSNL and M/s ITI Limited. The appellant has mainly sought for the details of Liquidated Damages calculated and recovered from M/s ITI Limited. Admittedly, M/s ITI Limited has got some vital business/commercial relation with M/s Huawei who had 2 authorized the appellant to obtain the required information. The calculation of Liquidated Damages on the breach of contract conditions varies under the facts and circumstances of each case. The criteria adopted in one case need not be the same in another case. Hence, these matters are usually confidential trade secrets and its disclosure would be detrimental to the interests of the BSNL. Therefore, disclosure of the sought for information is exempted u/Section 8(1)(d)of the RTI Act and there is no larger public interest involved in divulging this information.
7. The respondents submitted that the BSNL in addition to being a 'public authority' is also a commercial organization and the said agreement is a commercial contract between two commercial organizations i.e. BSNL and M/s ITI Limited. Therefore in this case, there are two third parties involved, namely BSNL and M/s ITI Limited, both of which are commercial organizations. The commercial interests of BSNL which is a commercial organization will be detrimental if the information sought for is disclosed. Moreover, M/S Huawei, one of the parties in the 'Tripartite Agreement' executed on 16.10.2008, for whom the appellant has sought information, is precluded by the 'principle of estoppel' as they are bound by clause 6 of the 'Tripartite Agreement' which says, "In the event of M/s ITI being insolvent, M/S Huawei, the Subcontractor shall directly deal with BSNL''. In other words, M/S Huawei cannot deal directly with the BSNL so long as M/s ITI is not declared insolvent. Therefore, even if M/s ITI Limited which is one of the two third parties, agrees for disclosure of information after issuance of notice under Section 11 of the RTI Act, BSNL as a 'public authority cannot disclose the information as per the provisions of Section 8(1)(d) of the RTI Act.
Discussion/ observation:
8. This Commission observed that the appellant is entitled to seek the sought for information u/Section 3 r/w Section 6 of the RTI Act, as she is seeking information as a citizen of India and duly authorized by M/s Huawei Telecommunications (India) Company Private Limited. Further, this Commission observed that disclosure of the LD calculations does not impact on the competitive position of the BSNL/third party. Hence, the exemption 3 available u/Section 8(1)(d) of the RTI Act is not attracted in this case. In view of the above, the respondent(s) should provide the sought for information on LD calculations to the appellant, within 30 days from the date of receipt of this order.
Decision:
9. The respondents are directed to take action as per para 8 above.
These appeals are disposed of. Copy of the order be given to the parties free of cost.
Radha Krishna Mathur (राधा कृ ण माथुर) Chief Information Commissioner (मु य सूचना आयु ) Authenticated true copy (अिभ मािणत स ािपत ित) S.C. Sharma Dy. Registrar एस. सी. शमा , उप-पंजीयक एस. सी.
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