Central Information Commission
R. V. Nagraju vs National Highways Authority Of India ... on 25 July, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/NHAIN/A/2021/653617
R V Nagaraju ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
National Highways Authority of India,
RTI Cell, PIU-Puducherry, No. 28 & 29,
1st Cross, Ganapathy Nagar, Arumparthapuram,
Puducherry-605110, Tamilnadu. .... ितवादीगण/Respondent
Date of Hearing : 20/07/2022
Date of Decision : 20/07/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 13/07/2021
CPIO replied on : 06/08/2021
First appeal filed on : 25/08/2021
First Appellate Authority order : Not on record
2nd Appeal/Complaint dated : 10/11/2021
Information sought:
The Appellant filed an RTI application dated 13.07.2021 seeking the following information:
"All the, documents i.e. statement of claim along with supporting documents, statement of defence along with supporting documents, rejoinder along with supporting documents if any and any other documents related 1 Arbitration proceeding going on between National Highways Authority of India (NHAI) and Pondicherry Tindivanam Tollway Private Limited(PTTPL), for the strengthening of the existing carriageway from Km 0.000 to 37.920 on the Pondicherry Tindivanam section of National highway No. 66 in the state of Tamil Nadu and widening thereof to 4 lanes and its improvements, operation & maintenance through a concession on Build, Operate and Transfer basis.
It is pertinent to mention that, Terra Projects Private limited is not a third party to the Arbitration between NHAI and PTTPL. It is a matter of fact that, Terra Projects Private Limited is one of the Shareholder, holding 26.10% equity shares along with a seat in the Board of Directors in PTTPL. It is vital to mention that, the Arbitration between PTTPL and NHAI is going on for more than 7 years now, and Terra Project Private Limited had made countless efforts and request before PTTPL and NCC Limited to provide status updates the on-going Arbitration. But PTTPL and NCC Limited (who is a majority Shareholders in PTTPL and in-charge of handling the Arbitration proceedings between PTTPL and NHAI) did not paid any heed to the request of Terra projects Private limited, they are not providing us Arbitration documents of the said Arbitration proceedings. It is clear from the above factual matrix that, Terra Projects Private Limited is a concerned party, who has substantial stake in the said Arbitration proceedings and will be affected by the outcome of the Arbitration proceedings. Thus, Terra Projects Private Limited is constrained to file the instant RTI application for accessing the critical information as mentioned above. Being shareholder as well as seat holder in Board of Directors of PTTPL, Terra, Projects Private Limited holds a substantial stake in PTTPL. Hence Terra Projects Private Limited is entitled to receive critical information concerning PTTPL and NHAI Arbitration proceedings."
PIO & DGM (Tech.,) Regional. Office, NHAI, Chennai transferred the RTI application on 16.07.2021 to the Project Director /CPIO, Project Implementation Unit, NHAI, Puducherry under section 6(3) of the RTI ACT, 2005 for providing the information directly to the appellant.
Subsequently, The Project Director /CPIO, Project Implementation Unit, NHAI, Puducherry furnished a reply to the appellant on 06.08.2021 stating as follows:-
"i) The documents requested by the applicant are not public documents and those documents are part of their record pending for adjudication before the Arbitration Tribunal.2
ii) As per section 42A of the Amended Arbitration & Conciliation Act all documents related to Arbitrations are confidential documents and cannot be shared to a third party either by the Arbitrator or by the parties to the Arbitration.
iii) As per RTI Act Clause 8(d), disclosure of information including commercial confidence, trade secrecy or intellectual property, the disclosure which would harm the competitive position of a third party, unless the competitive authority is satisfied that larger public interest warrants the disclosure of such information.
2. In view of the above pretexts, the information sought under RTI application can't be shared."
Being dissatisfied, the appellant filed a First Appeal dated 25.08.2021. FAA's order, if any, is not available on record.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Represented by Advocate Amit Keswal present through audio/video- conference.
Respondent: S Sakthivel, PD/PIU & CPIO along with Aditya, Representative of PTTL (Third Party) present through audio/video-conference.
The Commission remarked at the outset that a similar Appeal of the same Appellant has already heard and disposed of by this bench vide case no. case no. CIC/MPOTR/A/2020/670958 on 29.12.2021 with the following observations -
"....The Commission based on a perusal of the facts on record observes that the issue for determination in the instant appeal is squarely covered by the decision of a coordinate bench in the matter of Baleshwar Kumar vs. Ordnance Factory Board, Nalanda (File No. CIC/CC/A/2016/000509/SD) dated 03.01.2017 wherein the following was held:
"Arbitration is a form of Alternate Dispute Resolution and one of the tenets of such dispute resolution is privacy and confidentiality. This is also apparent from Section 75 of the Arbitration & Conciliation Act, 1991 which states that:3
Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.' Now even so by virtue of Section 22 of the RTI Act, which also is the latter law in force, the above said position of law stands overridden, yet exemptions under Section 8 of the RTI Act allows for denial of information on certain grounds. In the facts of the present case, Commission deems it appropriate to invoke Section 8(1)(j) of the RTI Act in as much as the disclosure of information may cause unwarranted invasion of the privacy of the parties involved in the arbitration and further as a matter involving commercial implications, disclosure at the pendency stage of arbitration may also be detrimental to the interest of the government exchequer which in effect is public money."
Adverting to the rationale of the above quoted decision, the Commission finds that while the CPIO has adequately discharged the onus of justifying the denial of the information sought for in the instant RTI Application under Section 8(1)(j) of the RTI Act, there is no infirmity in the said denial in as much as the arbitration proceedings are pending and disclosure of the information sought for by the Appellant does not warrant any larger public interest.
Having observed as above, the Commission finds no scope of intervention in the matter as this stage."
Considering the applicability of ratio of above said judgement, the Commission finds no scope of further intervention in the matter and upholds the submissions of the CPIO."
In response to the aforesaid observations, the CPIO while apprising the Bench raised a fundamental issue that the same Appellant had earlier filed an RTI Application as a representative of 'Terra Infra Development Limited' and now the instant RTI Application has been filed by him in the capacity of a representative of 'Terra Projects Private Limited ' which are two different legal entities.
The Advocate of the Appellant while rebutting the CPIO's contentions explained that 'Terra Infra Development Ltd' and 'Terra Project Pvt Ltd' are a group of companies and cannot be treated as different entities and this fact is untenable in view of the fact that the Appellant has filed RTI Application in both the cases in their own name. Further, while narrating the factual background of the matter at 4 length he explained that substantial stake of the Appellant's Company is involved in the averred arbitration award, therefore this information should be disclosed in the interest of justice.
Decision:
In furtherance of hearing proceedings and considering the square applicability of the ratio of above said decision, no further intervention of the Commission is warranted in the matter.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 5