Central Information Commission
Harinder Dhingra vs Life Insurance Corporation Of India on 24 August, 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 No.:- CIC/LICOI/A/2017/160035-BJ-FINAL
Mr. Harinder Dhingra
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO & Chief (RTI),
LIC of India, RTI Department,
Central Office, 5th Floor, (West Wing),
"Yogaksheema", Jeevan Bima Marg,
P O Box, No. 19953, Mumbai 400021
... ितवादीगण /Respondent
Date of Hearing : 07.06.2018, 13.07.2018, 23.08.2018
Date of Decision : 08.06.2018, 16.07.2018, 24.08.2018
Date of RTI application 15.05.2017
CPIO's response 23.05.2017
Date of the First Appeal 03.08.2017
First Appellate Authority's response 05.08.2017
Date of diarised receipt of Appeal by the Commission 29.08.2017
ORDER
FACTS:
The Appellant vide his RTI application sought information on 02 points regarding the complete details of total loans outstanding as on date against Prakash Industries and its CMD Shri Ved Prakash Agrawal along with the copies or records which states that Prakash Industries and its CMD Shri Ved Prakash Agrawal were wilful defaulters.
The CPIO, vide its reply dated 23.05.2017 denied disclosure of information u/s 8(1)(j) and (e) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 05.08.2017 concurred with the response of the CPIO.Page 1 of 8
HEARING:
Facts emerging during the hearing on 07.06.2018:
The following were present:
Appellant: Mr. Harinder Dhingra alongwith Mr. Tarun Dhingra; Respondent: Mrs. Naveen Koul, Chief (RTI)/CPIO and Mr. Sunandan, Dy. Secretary (RTI) through VC;
The Appellant reiterated the contents of his RTI application and stated that the CPIO / FAA erred while denying information under Section 8 (1) (e) and (j) of the RTI Act, 2005. While elaborating on the queries raised in the RTI application, the Appellant submitted that in the present instance he was seeking information regarding one M/s Prakash Industries and claimed that the said entity was a defaulting borrower as per the RBI's wilful defaulters and defaulting borrowers list. In support of his contention, he referred to a news report dated April, 26, 2016. Furthermore, the Appellant submitted that he had also filed a public interest litigation in a related matter before the Hon'ble High Court of Punjab & Haryana in CWP No. 7256-2017 which was sub-judice. A reference was also made to para 79/80/81 of the judgment of the Hon'ble Supreme Court of India in R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015. In its reply, the Respondent stated that a suitable response was provided by the CPIO / FAA denying disclosure of information under Section 8 (1) (e) and (j) of the RTI Act, 2005 on the ground that the information was held with them in their fiduciary capacity with the third party and that its disclosure could also cause unwarranted invasion to the privacy of the Third Party.
In support of their contention, the Respondent relied on the decision of the Commission in Appeal No. CIC/SS/A/2012/000286 dated 30.09.2012. The Appellant argued that the said decision pertained to different facts and circumstances. During the hearing, the Respondent also submitted that information regarding the company where LIC had invested money/sanctioned loan was a commercial activity and disclosing the negative list could also be used for ascertaining the positive list. Hence, the information was essentially commercially confidential and protected under Section 8 of the RTI Act, 2005 and that disclosure in a single case could open the flood gates for the public authority to disclose information in every other case. Moreover, it was apprehended that they could not disclose information on mere suspicion of the Appellant and that no concrete evidence was adduced by him to substantiate his claims.
The Commission was in receipt of a written submission from the Respondent dated 04.06.2018, wherein the reply of the CPIO/ FAA was reiterated. Further, it was stated that the company where LIC had invested money/sanctioned loan was a commercial activity. In this regard giving a negative list could also be used for ascertaining the positive list. Therefore, the entire information of "loanees/investors" was commercially confidential and sensitive in nature and the same was covered u/s 8(1) (d) as well as 8(1) (j) & (e) of the RTI Act, 2005. Furthermore, it was stated that not only commercial confidence of LIC was involved but the commercial confidence of Third Party was also involved. Moreover, it was submitted that, if the information was disclosed in a single case now, then in future, the Public Authority would have to disclose such information in every other case which could harm the competitive position of the Corporation and concerned third parties. Further, it was submitted that Appellant's Second Appeal was based on the presumption that Prakash Industries and its CMD Shri Ved Prakash Agrawal were wilful Page 2 of 8 defaulters of loan granted by LIC of India also that the Appellant had neither informed them that he was affected party in the transaction nor he had brought out any specific public interest with supporting documents in this case. With regard to the above contention, the reliance was placed to the decisions of the Commission in the Appeal Nos. CIC/DS/A/2012/002760 in the case of Shri N.D. Dujari vs. LIC of India, CIC/SG/A/2011/002667/16119 in the case of Mr. Inderpal Singh vs. Oriental Bank of Commerce and Appeal No. 1378/ICPB/2008 in the case of Mr. Ravinder Kumar vs. State Bank of India to substantiate their claim. In view of the above, it was prayed to the Commission to dismiss the Appeal of the Appellant.
Having heard the both parties at length and on perusal of the available records, the Commission observed that several pertinent issues relating to alleged wilful default of loans by M/s Prakash Industries and its CMD, Mr. Ved Prakash Agrawal were raised by the Appellant vide his RTI application which was a matter of larger public interest since the disclosure of information could have far reaching impact on the economy of the country and information cannot be viewed as being restricted to an individual transaction more particularly when financing was through banks and financial institutions, utilising the money of the public in general. It had been undoubtedly acknowledged by the courts that the information regarding defaulters must be brought to the citizen's knowledge as the larger public interest was warranted by such actions. This would also act as a deterrent to other such individuals to refrain from the intention of misutilising funds borrowed from the financial institution and could have some impact in shaming them in the event of default.
On the issue of larger public interest involved in a matter, the Commission referred to the observation of the Hon'ble Supreme Court in the matter of Bihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 wherein it was held as under:
22. "The expression "public interest" has to be understood in its true connotation so as to give complete meaning to the relevant provisions of the Act. The expression "public interest" must be viewed in its strict sense with all its exceptions so as to justify denial of a statutory exemption in terms of the Act. In its common parlance, the expression "public interest", like "public purpose", is not capable of any precise definition. It does not have a rigid meaning, is elastic and takes its colour from the statute in which it occurs, the concept varying with time and state of society and its needs (State of Bihar v. Kameshwar Singh([AIR 1952 SC 252]). It also means the general welfare of the public that warrants recognition and protection; something in which the public as a whole has a stake [Black's Law Dictionary (8th Edn.)]."
Also the Hon'ble High Court of Delhi dated 13/07/2012 in (W.P. (C) No. 1243 of 2011- UPSC vs. R.K. Jain) wherein while discussing on the issue of disclosure of information in larger public interest the Hon'ble High Court of Delhi had held as under:
"'The second half of the first part of clause (j) of Section 8(1) shows that when personal information in respect of a person is sought, the authority concerned shall weigh the competing claims i.e., the claim for the protection of personal information of the concerned person on the one hand, and the claim of public interest on the other, and if "public interest" justifies disclosure, i.e., the public interest outweighs the need for Page 3 of 8 protection of personal information, the concerned authority shall disclose the information."
Hence it was noted that there were important, sensitive and significant issues that merit detailed examination.
INTERIM DECISION:
Considering the facts of the case, the submissions made by both the parties and to provide a fair and reasonable opportunity of hearing to all the concerned parties, the Commission directs the Respondent to inform the third party i.e. M/s Prakash Industries /CMD Mr. Ved Prakash Agrawal to be present during the next hearing either in person or through his duly authorised representative so as to enable it to defend or present its case before the Commission. The Dy. Registrar, CIC is instructed to fix another short date of hearing in the matter within 04 weeks from the date of this order.
The matter stands adjourned.
Note: Subsequently, the Dy. Registrar, vide its letter dated 18.06.2018, fixed 13.07.2018 as the next date of hearing in the matter.
HEARING:
Facts emerging during the hearing on 13.07.2018:
The following were present:
Appellant: Mr. Harinder Dhingra alongwith Mr. Tarun Dhingra; Respondent: Mrs. Naveen Koul, Chief (RTI)/CPIO and Mr. B. J. Roy, Dy. Secretary through VC;
Third Party: Mr. Rohit Choudhry (Adv.) and Ms. Preeti representing Mr. Ved Prakash Agrawal, CMD M/s Prakash Industries;
The Commission resumed its hearing in the said matter with the presence of the Third Party. The Appellant reiterated his submission and cited RBI Circular DBOD No. BC/CIS/47/20.16.002/94 dated April, 23 1994 in support of his contention and emphasized that all financial institutions were directed to send a report on the list of defaulters. He referred to the decision of the Supreme Court in the matter of Mardia Chemicals Limited vs. Union of India, 2004) 4 SCC 311 and R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015 as also the decision of the CIC in File No. CIC/SH/A/2015/000981 dated 25.01.2016. In its response, the Respondent submitted that the details of loan outstanding against M/s Prakash Industries and its CMD were commercially sensitive and confidential and referred to Section 8(1)(d) & (e) of the Act. Furthermore, it was emphasized that their regulator IRDA had also imposed confidentiality conditions on categories of investments, doubtful debts, gross and net NPA etc. The Commission was informed that the list of willful defaulters was uploaded in Credit Information Bureau of India Ltd. (CIBIL) as per RBI's requirement which was available to the members only. It made a distinction between a defaulter and wilful defaulter. A reference was made to the judgment of the SC in R.B.I. and Ors. V. Jayantilal N. Mistry and Ors, Transferred Case (Civil) No. 91 of 2015 (Arising out of Transfer Petition (Civil) No. 707 of 2012 decided on 16.12.2015 and their own Page 4 of 8 view in respect of Section 8(1)(d) & (e) of the Act. It was categorically stated that the query of the Appellant was based on presumption that M/s Prakash Industries Ltd. was a wilful defaulter of Public Funds in the books of LIC of India. Moreover, it was stated that LIC had not received any information requirement under any statutory role / duty/ authority from M/s Prakash Industries/CMD and that the information sought was about a purely commercial transaction. Further, if the information was disclosed in a single case then it would have to disclose such information in every case which could harm the competitive position of the Corporation and the Third Parties. Therefore, reliance was placed on Section 8(1)(d) of the RTI Act, 2005. The Third Party present at the hearing took objection to its commercial details being disclosed and it was argued that they would require some more time to file their written submission. It was however, contended that the Appellant based on certain presumptions was seeking commercial details which was outside the purview of the RTI Act, 2005 and that the Act was allegedly being misused by entities like the Appellant. He therefore, sought seven days time to file his submission. He was advised that a copy of the submission should be made available to the Appellant also.
INTERIM DECISION-I:
In the light of the above facts, the Commission advised the Respondent to share a copy of their written submission with the Appellant. The Respondent is advised to intimate the Third Party about the next date of hearing in the Commission as requested by them. The Dy. Registrar is instructed to fix another short date of hearing in the matter.
The matter stands adjourned.
Note: The Dy. Registrar, vide its notice dated 02.08.2018 fixed 23.08.2018 as the next date of hearing in the matter.
HEARING:
Facts emerging during the hearing on 23.08.2018:
The following were present:
Appellant: Absent;
Respondent: Mrs. Naveen Koul, Chief (RTI)/CPIO through VC;
Third Party: Mr. Rohit Choudhry (Adv.); Ms. Preeti and Mr. Jaivardhan Jeph (Advocate) representing Mr. Ved Prakash Agrawal, CMD M/s Prakash Industries;
The Appellant remained absent during the hearing. The Respondent at the outset submitted that they had shared a copy of their written submission with the Appellant vide their email dated 01.08.2018 and 06.08.2018. A letter dated 06.08.2018 was also dispatched to the Appellant besides email. Furthermore, the CPIOs reply, Appellate Order, IInd Appeal to the Commission by the Appellant and their submissions dated 04.06.2018 and 06.07.2018 were also forwarded to the Third Party i.e., M/s Prakash Industries vide registered post / e-mail dated 17.07.2018. The Third Party was also informed about the next date of hearing vide their letter dated 07.08.2018.
The representatives of the Third Party denied receipt of any of the aforementioned documents except the copy of the notice of hearing to be present for the instant hearing. The Respondent contested the aforementioned submission and stated that on 13.08.2018 they spoke to the Page 5 of 8 representative of the Third Party on mobile phone, who confirmed the receipt of the aforementioned letters. With regard to the substantive issue regarding disclosure of information, the Respondent reiterated their earlier submissions and submitted that the information was commercially sensitive and confidential in nature not only to the Respondent but to the loanee and hence was exempted under Section 8(1)(d), (e) & (j) of the RTI Act, 2005. During the hearing, the Respondent while referring to their earlier written submission dated 06.07.2018 submitted that M/s Prakash Industries/ CMD Mr. Ved Prakash Agrawal were not willful defaulters in the books of the Corporation and that as on date no loan remained outstanding from them. The representative of the Third Party also categorically submitted that since they had not borrowed any fund from the Respondent Public Authority since the last 13+ years, the question of them being a willful defaulter did not arise at the first stage. On being queried by the Commission, whether they were in receipt of any notice of hearing in the matter before the Hon'ble High Court of Punjab and Haryana, the Respondent as well as the representatives of the Third Party replied in the negative.
The Commission was in receipt of a written submission from the Appellant dated 16.07.2018 wherein it was inter alia stated that he had filed a PIL before the Hon'ble Punjab and Haryana High Court bearing CWP 7256 of 2017 (next date of hearing 25.07.2018) in which the issue pertained to more than 700 HUDA Plots being registered in the name and companies controlled by family of Mr. V. P. Agarwal and or by Prakash Industries. It was conveyed that during the hearing the CPIO informed that these were not NPA but effective date of not being NPA/ Defaulter was not mentioned. Thus, while referring to Section 8 (2) of the RTI Act, 2005, it was prayed to disclose the information.
The Commission was also in receipt of a written submission from the Respondent dated 16.08.2018, wherein it was stated that in compliance with the order of the Commission dated 16.07.2018, they had shared a copy of their written submission with the Appellant vide their email dated 01.08.2018 and 06.08.2018. A letter dated 06.08.2018 was also dispatched to the Appellant. Furthermore, the CPIOs reply, Appellate order, IInd Appeal to the Commission by the Appellant and their submissions dated 04.06.2018 and 06.07.2018 were also forwarded to the Third Party i.e., M/s Prakash Industries vide their e-mail dated 17.07.2018. The Third Party was also informed about the next date of hearing vide their letter dated 07.08.2018. While re-iterating their earlier written submissions dated 04.06.2018 and 06.07.2018, the Respondent stated the information sought was commercially sensitive and confidential in nature not only to the Respondent but the loanee as well. While re-iterating that as per the Annual Report they disclosed the Categories of Investment, Amount of Investment, Provision for Doubtful Debts and Gross and Net NPA and that information regarding the Company in which they had invested the money/ sanctioned loan was a commercially sensitive information exempted u/s 8 (1) (d) of the RTI Act,. 2005. While referring to the various Supreme Court Cases and RBI circulars cited by the Appellant it was submitted that on every occasion new Court cases were added which were not relevant to the present matter. Further, the third party also objected to the disclosure of commercial information and contended that the allegations made by the Appellant were based on assumptions without any supporting documents and emphasized that the RTI Act was misused by the Appellant. Thus, it was prayed to summarily close the Appeal.
Page 6 of 8Having heard the Respondent and the representatives of the Third Party as also taking into consideration the written submissions made by all concerned before the instant date of hearing and the earlier submission / written submissions on record, it was noted that the information held on record had been shared with the Appellant.
The Commission referred to the definition of information u/s Section 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 Vs. Aditya Bandopadhyay), 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 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."
Page 7 of 87. "....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."
The Appellant was not present to contest the submissions of the Respondent/Third Party or to establish the larger public interest in disclosure which outweighs the harm to the protected interests.
FINAL DECISION:
Keeping in view the facts of the case and the submission made by the Respondent/Third Party as also the documents available on record, no further intervention of the Commission is required in the matter.
The Appeal stands disposed accordingly.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 24.08.2018
Page 8 of 8